Dr. Sunil Kumar Jha vs The State of Bihar and Others

Narayan Roy, J.—Heard Counsel for the parties.

Initially, this writ application was filed by the Petitioner for direction to Respondent Nos. 1 to 6 to allow him to function as Lecturer in Sanskrit in Dr. Jaganath Mishra Sanskrit Mahavidyalaya Paston-Navtoli, Madhucani and for payment of salary as he was recommended for the post by the Bihar College Service Commission. However, the prayer was moulded by the Petitioner by filing an interlocutory application being I.A. No. 739 of 2000 during the pendency of this application as certain development had taken place and Respondent No. 8 was appointed on the post of Lecturer in Sanskrit in the aforesaid College by the Governing Body vide appointment letter No. G/60/2000 dated 17.5.2000 and her appointment has now been challenged.

It is submitted by learned Counsel for the Petitioner that the Petitioner, pursuant to an advertisement, applied for the post of Lecturer in Sanskrit in the College in question and at the same time, Respondent No. 8, Manjula Kumari also applied for and the Governing Body of the College forwarded the names of the Petitioner and Respondent No. 8 for concurrence to the College Service Commission and the College Service Commission recommended the names of Petitioner and Respondent No. 8 where the Petitioner was the first nominee. It is further submitted that it is an admitted fact that the name of the Petitioner was placed above Respondent No. 8 in the recommendation of the College Service Commission and, therefore, the Governing Body could have appointed the Petitioner on the post of Lecturer in Sanskrit

Counter affidavits have been filed on behalf of Respondent No. 6, Governing Body of the College and also by Respondent No. 8. The fact that the Petitioner was the first nominee, as per recommendation of the College Service Commission is not disputed by Respondent No. 6 in its counter affidavit. However, in the counter affidavit of Respondent No. 6, it is stated that it is always desirable to prefer a more suitable qualified and academically sound candidate date for the purpose of appointment and therefore, the College Service Commission had also given that discretion to Governing Body of the College and accordingly, Smt. Manjula Kumari, Respondent No. 8 was found more suitable for the post and accordingly, she was appointed. Respondent No. 8 in her counter affidavit has stated that after comparing the respective merit of the writ Petitioner and the answering Respondent, a decision was taken to appoint her and accordingly, she gave her joining in the College on 22.5.2000 and since then she is continuing on the post of Lecturer in Sanskrit. It is also stated that the conduct of the Petitioner was not found satisfactory as he had produced certain forged order of appointment.

The College Service Commission is a formal party and learned Counsel appearing on its behalf has stated that the Commission has recommended the names of the Petitioner and Respondent No. 8 where Petitioner''s name was placed above Respondent No. 8 and it was for the Governing Body to make appointment.

The question now arises as to whether the Governing Body of an affiliated College can appoint the second nominee ignoring the recommendation of the Com-mission where the Petitioner was the first nominee. The question which has arisen in this case, fell for consideration before the Supreme Court in the case of Jatinder Kumar and Others Vs. State of Punjab and Others, where it was held that appointment is to be made strictly adhering to the order of merit, as recommended by the Commission. Again in the case of State of Bihar Vs. Kaushal Kishore Singh and others, the Supreme Court held that when a Commis-sion or Board selects the candidates, the normal procedure is to prepare list of can-didates selected in the order of their merit. Similarly, in the case of Chancellor v. Shankar Rao and Ors., (1999) 6 SCC 255 the Supreme Court held that the Chancellor even cannot re-evaluate the merits of candidates and on that basis cannot reject the candidates selected by the Board of Appointment, except in the case where recommendation is in violation of provisions of Act or Statute. In this connection, reference may also be made to a Full Bench decision of Madhya Pradesh High Court in the case of Omprakash Vs. The State of Madhya Pradesh and Another, Recently, in the case of Triloki Nath Upadhya Vs. The Chairman, Bihar College Service Commission and Others, it was held that vacancies must be filled up strictly in accordance with the list sent by the Commission and the authority cannot alter the order of merit.

The recommendation of the Commission, thus, was binding on the Govern-ing Body and it was not open to it to alter the order of merit and in that view of the matter, it could not have appointed Respondent No. 8 ignoring the claim of the Petitioner unless for other good reason, the Petitioner could have been found unsuitable for appointment.

In the aforesaid circumstances, the Governing Body had no option but to appoint the Petitioner on the basis of the preference, as recommended by the Commission and had no discretion to choose the second nominee. There is nothing specific on record to suggest that the Petitioner was found otherwise not suitable in comparison to the second nominee. The recommendation made by the College Service Commission is statutory in nature under Sub-sections (9) and (10) of Section 2 of Bihar College Service Commission Act, 1976 and, therefore, it was binding upon the Governing Body to act according to the recommendation of the Commission. The decision taken by the Governing Body of the College appointing Respondent No. 8 to the post of Lecturer in Sanskrit, therefore, must be held to be without jurisdiction.

In the result, this application is allowed and the decision of the Governing Body of the College appointing Respondent No. 8 vide appointment letter No. G/60/2000 dated 17.5.2C00 is set aside and the matter is remitted back to the concerned Respondents including the Governing Body of the College to take a decision afresh on the basis of the recommendation made by the College Service Commission in accordance with law.