Case: Gov.Body,L.P Shahi College, Patna  Vs. Seema Mishra

have been directed to inform that for the post of Lecturer in Labour & Social Welfare Dept. of your college, advertisement was made by the Commission vide Advertisement No.315/94. After holding the interview of the candidates, this commission recommends the names of following candidates in the order of preference for appointment on the post of Lecturer provided affiliation for the current session is obtained.First Post: 1. Dr. Siyaram Sharma-First2. Smt. Seema Mishra-Second”Contention of appellant is that as per the above communication, the Commission recommended two persons for the first post, one of them viz., Dr. Siyaram Sharma was appointed and since there was no recommendation for the second post, no appointment was made to the second post.11. As per the provisions of the Act, the Commission is required to make recommendations of two persons for every post, arranged in the order of preference, out of which the Governing Body of the College is to make appointments and no person whose name is not recommended by the Commission can be appointed by the Governing Body. This will be evident from sub-sections (9) and (10) of Section 2 of the Act, which read as under:-“Section 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.(10) 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 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.”Since two posts were advertised for the appellant-College, in terms of Section 2(9) of the Act, it was mandatory on the part of the Commission to recommend two plus two candidates. But the Commission recommended only two candidates for the first post.The second respondent-Commission has not followed the mandatory provision of Section 2(9) in recommending two plus two candidates for the two posts of lecturers advertised for the appellant-College.12. The writ petition filed by the first respondent in the year 2000 was disposed on 02.11.2007. After referring to the Commission’s communication dated 15.06.1999, the learned Single Judge observed “the Commission’s letter of recommendation was inartistically worded. It appears to me that the Commission intended to recommend the two names against the two posts”. Pointing out that the first respondent’s suitability was not in doubt and that she has been deprived of her appointment for no fault of hers, the learned Single Judge allowed the writ petition, inter alia, issuing directions as aforesaid.13. Before the Division Bench, Mr. Yugul Prasad, counsel appearing on behalf of the Commission submitted that an error had crept in, in the recommendation of the Commission. After referring to this submission, the Division Bench observed as under:“…When the post is available the Commission was asked to rectify such error and in most of the cases the Commission has explained such error and made statement before this Hon’ble Court with regard to the appointment of the respondent-petitioner...”Having said so, after referring to the communication of the Commission dated 15.06.1999, the Division Bench took the view that the name of Dr. Siyaram Sharma was recommended for the first post and the name of first respondent was recommended for the second post. The communication of the Commission dated 15.06.1999 clearly states that the first respondent’s name was recommended as second preference for the first post.14. Under Section 2(10) of the Act, the Governing Body of the College shall select for appointment from the names recommended by the Commission. Thus, the Governing Body has the right to select the candidates in the order of preference. But since two posts were available, the Commission ought to have recommended two plus two candidates. The High Court rightly observed that the Commission had violated the mandatory provision of Section 2(9). Since there was violation of the statutory provisions by the second respondent-Commission and going by the submission made on behalf of the Commission before the High Court, the name of the first respondent is to be considered for the second post available. She should not be made to suffer injustice for no fault of her own.15. The first respondent’s suitability for appointment is not in doubt; instead of recommending the first respondent to the second post, the Commission was not justified in recommending her name as second preference for the first post and stopping at that. The reasons are not far to seek. In the second post available in the appellant-L.P. Shahi College of Labour and Social Welfare, Dr. Ramdeo Prasad Sharma (appellant in the connected matter i.e. in the appeal arising out of SLP (C) No. 978 of 2012) has already been working temporarily in the Department of Labour and Social Welfare. Even though the said Ramdeo Prasad Sharma applied for the post, his name was not recommended. Be it noted that the said Dr. Ramdeo Prasad Sharma has not challenged his non-selection by the Commission. In violation of Section 57A of the Bihar State Universities Act, appellant College continued Dr. Ramdeo Prasad Sharma in the said post which is in violation of the provisions of Bihar State Universities Act. Continuance of Ramdeo Prasad Sharma in the post was improper, arbitrary and in disregard of the statutory provisions. The appellant-Ramdeo Prasad Sharma is said to have retired at the age of superannuation in January, 2016 and that post in the Department of Labour and Social Welfare is presently vacant.16. Since there was violation of Section 2 (9) of the Bihar College Service Commission Act, 1976 and that of Section 57A of Bihar State Universities Act, the High Court has rightly allowed the writ petition filed by the first respondent, inter alia, issuing directions as stated above. We do not find any reason warranting interference with impugned judgment.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. Under Section 2(10) of the Act, the Governing Body of the College shall select for appointment from the names recommended by the Commission. Thus, the Governing Body has the right to select the candidates in the order of preference. But since two posts were available, the Commission ought to have recommended two plus two candidates. The High Court rightly observed that the Commission had violated the mandatory provision of Section 2(9). Since there was violation of the statutory provisions by the secondand going by the submission made on behalf of the Commission before the High Court, the name of the first respondent is to be considered for the second post available. She should not be made to suffer injustice for no fault of her own.15. The firstShahi College of Labour and Social Welfare, Dr. Ramdeo Prasad Sharma (appellant in the connected matter i.e. in the appeal arising out of SLP (C) No. 978 of 2012) has already been working temporarily in the Department of Labour and Social Welfare. Even though the said Ramdeo Prasad Sharma applied for the post, his name was not recommended. Be it noted that the said Dr. Ramdeo Prasad Sharma has not challenged hisby the Commission. In violation of Section 57A of the Bihar State Universities Act, appellant College continued Dr. Ramdeo Prasad Sharma in the said post which is in violation of the provisions of Bihar State Universities Act. Continuance of Ramdeo Prasad Sharma in the post was improper, arbitrary and in disregard of the statutory provisions. ThePrasad Sharma is said to have retired at the age of superannuation in January, 2016 and that post in the Department of Labour and Social Welfare is presently vacant.16. Since there was violation of Section 2 (9) of the Bihar College Service Commission Act, 1976 and that of Section 57A of Bihar State Universities Act, the High Court has rightly allowed the writ petition filed by the first respondent, inter alia, issuing directions as stated above. We do not find any reason warranting interference with impugned judgment.