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                  NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  10010     OF 2016 (Arising out of SLP(C) No. 32203 of 2011)

GOVERNING BODY, L.P. SHAHI COLLEGE, PATNA AND ANR.                    Appellants

Versus

SMT. SEEMA MISHRA & ORS.                 Respondents

With

CIVIL APPEAL NO.  10011         OF 2016 (Arising out of SLP(C) No. 978 of 2012)

DR. RAMDEO PRASAD SHARMA    Appellant

Versus

SMT. SEEMA MISHRA & ORS.                Respondents

O R D E R

R. BANUMATHI, J.

Leave granted.

2. These two appeals have been filed against the judgment of the

Patna High Court dated 30.06.2011 in LPA No.364 of 2008 arising out

of  C.W.J.C.  No.8004 of  2000 wherein  Division Bench of  the High

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Court directed the appellant-L.P. Shahi College, Patna to appoint the

first respondent in the College.  One appeal is by the College and the

other appeal by Dr. Ramdeo Prasad Sharma who was appointed as a

Lecturer  in  the  Department  of  Labour  and  Social  Welfare  of  the

appellant-College  on  temporary  basis,  on  usual  scale  of  pay  and

other  allowances.  These two appeals shall  stand disposed by this

common  order.  For  convenience,  we  narrate  the  facts  from  the

appeal arising out of SLP(C) No.32203 of 2011.   

3. Brief facts leading to the filing of these appeals are as under: In

the year 1994, the erstwhile Bihar College Service Commission [for

short  ‘the  Commission’]  had  issued  an  advertisement  inviting

applications  for  the  large  number  of  teaching  posts  in  different

colleges of undivided Bihar including two posts in the Department of

Labour and Social Welfare of the appellant-College. Respondent No.

1 had submitted her application on one of the posts advertised for

teaching  in  the  Department  of  Labour  and  Social  Welfare.  The

erstwhile  Commission  recommended  two  names  viz.,  Dr.  Siyaram

Sharma and Smt. Seema Mishra against the two advertised posts of

lecturers  in  the  Labour  and  Social  Welfare  Department  in  the

appellant-College  and  communicated  the  same  vide letter  dated

15.06.1999 to the appellant-College.  

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4. According  to  the  appellants,  two  persons  viz.,  Dr.  Siyaram

Sharma and Smt.  Seema Mishra had been recommended against

one post  and in  exercise of  its  right  under  Section 2(10)  of  Bihar

College  Service  Commission  Act,  1976  (for  short  ‘the  Act’),  the

appellant-College  appointed  Dr.  Siyaram  Sharma  and  respondent

No.1  was  denied  appointment.  Being  aggrieved  by  the  denial  of

appointment, respondent No.1 filed a Writ Petition bearing No. 8004

of 2000 before the High Court.  

5. The learned Single Judge held that the Commission intended to

recommend the two names against two posts, but the aforesaid letter

of  recommendation  was  inartistically  worded.  The  learned  Single

Judge directed that the first respondent be appointed to the second

post of Lecturer in the Department of Labour and Social Welfare with

effect from the date when Dr. Siyaram Sharma had joined the post,

with notional benefits. It was further directed that the first respondent

shall not be entitled to the arrears of salary or any other monetary

benefits till  she joins the post;  however she will  be entitled to the

raised salary with added increments which would have fallen due to

her from the date Dr. Siyaram Sharma joined till the date she joins.

Aggrieved  by  the  order  of  the  learned  Single  Judge,  the

appellant-College went before the Division Bench of the High Court

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by way of intra-court appeal. The Division Bench upholding the order

of the Learned Single Judge, held that the Commission had violated

the provision of sub-Section (9) of Section 2 of the Act and had failed

in its duty in not recommending the names of persons for the second

post which was advertised and was available.  The Division Bench,

inter alia, affirmed the other directions of the Single Judge.  

6. Heard learned counsel for the parties at length.  

7. Learned  counsel  for  the  appellants  contended  that  after

interviewing  the  candidates  for  selection  to  the  above  posts,  the

Commission recommended the names of Dr. Siyaram Sharma-First

and Smt.  Seema Mishra-Second for  the first  post  in the aforesaid

Department  of  the  appellant-College,  and  the  Commission  also

issued a letter to this effect dated 15.06.1999 specifically mentioning

that,  the  College  shall  appoint  any  one  from  the  names

recommended by the Commission with the condition that  the said

appointment shall be approved by the University.  It was submitted

that the Commission actually failed in its duty in not recommending

the  names  of  persons  for  the  second  post  and  according  to  the

appellant,  it  is  erroneous to  construe that  first  respondent’s  name

should be considered for the second available post.  It was further

submitted that the interpretation of the Single Judge that “it appears

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that the Commission intended to recommend the two names against

the two posts” was not only an error of record but was also against

the Statute i.e. Section 2(9) of the Act.  It was submitted that without

appreciating the aforesaid position of law, the Division Bench erred in

dismissing the appeal filed by the appellant-College  

8. Per  contra,  the  learned  counsel  for  the  first  respondent

submitted that as per Section 2(9) of the Act, the Commission was to

give its recommendation for both the vacant posts, however, due to

error of communication, the letter dated 15.06.1999 was so worded

that  it  appeared that  the two names recommended were given in

order of preference for a single post. It was submitted that actually

the name of the first respondent was recommended for the second

permanent, vacant and advertised post and upon proper appreciation

of the facts and circumstances and the submissions of the counsel for

the  Commission,  the  High  Court  has  rightly  directed  the

appellant-College to  consider  the name of  the first  respondent  for

appointment to the second post available.   

9. We  have  carefully  considered  the  rival  contentions,  and

perused the impugned judgment and material on record.

10. Section 57A of the Bihar State Universities Act, 1976, provides

that appointment of teachers of affiliated colleges not maintained by

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the State Government, shall be made by the Governing Body on the

recommendation  of  the  College  Service  Commission.  Admittedly,

there were two vacancies in the Department of Labour and Social

Welfare in the appellant-College for which advertisement was issued.

First respondent was recommended only after the selection process.

Second respondent-Commission had recommended two names vide

its letter dated 15.06.1999 and the same reads as under:-

“… Bihar College Service Commission,

Patna Boring Canal Road, Patna-800001

Letter No.593 Confid./BCSC Patna,                                                                             Dated 15.06.1999

From  Secretary, Bihar College Service Commission, Patna

To, The Secretary Governing Body,

Sub: Appointment of Lecturer in the Dept.

In  reference to  your  letter  No…..  dated…..  I  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-First

2. 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

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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.

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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...”

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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

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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

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filed by the first  respondent,  inter  alia,  issuing directions as stated

above.  We  do  not  find  any  reason  warranting  interference  with

impugned judgment.

17. In the result, both the appeals are dismissed.

..……………………….J.         [SHIVA KIRTI SINGH]

      ………………………..J.         [R. BANUMATHI]

New Delhi; October 05, 2016

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