1. Heard learned counsel for the parties. The delay in filing the appeal is condoned. The limitation petition is allowed.
2. The appeal has been preferred against the judgment and order dated 9.9.2002 whereby the order of appointment of the appellant on the post of lecturer in
Sanskrit has been quashed and the matter was remitted to the Governing Body to pass
an order of appointment in accordance, with law.
3. The relevant facts of the case are that in the Dr. Jagannath Mishra Sanskrit Mahavidyalaya. Paston-Navtoli, Madhubani the post of lecturer in Sanskrit was vacant. The College (Service Commission vide order dated 20.5.1999 recommended the name of the appellant in item No. 2 and the name of the respondent, Dr. Sunil Kumar Jha in item No. 1, annexure 3, to the writ petition. The Governing Body of the college appointed the appellant, whose name was in item No. 2 of the recommendation. The respondent Dr. Sunil Kumar Jha, challenged the said appointment in CWJC. No. 12853 of 1999. The said writ petition was allowed on 9.9.2002 (reported in 2002 (4) PLJR 631) and the matter was remitted to the Governing Body to take a decision afresh on the basis of recommendation made by the College Service Commission in accordance with law. The said order has been impugned in this appeal.
4. The contention of the learned counsel for the appellant is that two names were recommended by the College Service Commission. The name of the appellant was in item No. 2. It was the discretion of the Governing Body to appoint any of the two recommended persons. In support of the submission learned counsel drew my attention to Section 2, Clause (10) of the Bihar College Service Commission Act, 1976, which reads as follows :
Section 2(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.
5. Reference in this clause has been made of Sub-section (9) and for better appreciation the same is quoted hereinbelow:
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.
6. Therefore, it appears that both the clauses have to be read together. It is to be noticed from Section 2, Clause (9) of the Bihar College Service Commission Act, 1976, quoted above, that names of two persons arranged in order to preference and considered by the Commission shall be recommended. Section 2, Clause (10) says only with respect to appointment out of recommendation made by the Commission. It does not say that the person in item No. 1 shall be ignored and below him shall be appointed for one post. It is well settled rule of law that in case names of more than one persons are recommended for one post the first name cannot be ignored without assigning any reason. Therefore, it is necessary for the competent authority while ignoring the name of the first candidate to assign reason for the same. In the instant case nothing has been done. In the case of Sri Chandra Bhushan Pd. Singh v. The Chancellor, Bihar University and Ors., 1979 BBCJ 384 the Division Bench in similar circumstance has held 'Essentially, therefore, the appointments have to be made in the order of merit as recommended by the Commission. If however the order of merit, as recommended by the Commission, is unacceptable to the Syndicate or the Governing Body of a college, it has to record the reasons for not accepting the recommendation as made by the Commission and further, the Syndicate or the Governing Body has to submit the case to the Chancellor for final orders.'
7. The learned Single Judge has considered the claim of the appellant and also the respondent and Has come to a conclusion that since the name of the respondent was in item No. 1, the Governing Body was not justified in appointing the appellant, whose name in item No. 2. The learned Single Judge has considered different decisions of the Supreme Court/High Court for coming to a conclusion. However, it is evident from the materials on record that while appointing the appellant no reason has been assigned as to why the case of the respondent, whose name was in item No. 1 was ignored. Learned counsel for the Governing Body of the college could not be able to show that any reason has been assigned by the Governing Body for appointing the appellant, whose name was in item No. 2 ignoring the respondent, whose name was in item No. 1 of the recommendation.
8. In the instant case, it has already been said that no reason has been assigned for appointing the appellant, whose name is in item No. 2 ignoring the case of the respondent No. 1, whose name is in item No. 1 of the recommendation, annexure 3. The learned Judge has considered entire aspect of the matter for coming to a conclusion and passed the order impugned.
9. On consideration, we find no error in the order impugned. According, the Letters Patent Appeal is dismissed.