Jharkhand High Court
Siddhu Kanhu University Etc. vs Dr. Arjun Prasad Sinha And Ors. ... on 3 September, 2003
Equivalent citations: [2003(4)JCR1(JHR)]
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan, R.K. Merathia
JUDGMENT P.K. Balasubramanyan, C.J.
1. Letters Patent Appeal No. 336 of 2003 is filed by the Siddhu Kanhu University, Dumka, respondent No. 2 in WP (S) No. 6084 of 2002 [reported in 2003 (2) JCR 651 (Jhr)j. Letters Patent Appeal No. 377 of 2003 is filed by the State of Jharkhand, respondent No. 4 in WP (S) No. 6084 of 2002. These appeals are directed against the decision of a learned Single Judge dated 22.4.2003 in that writ petition.
2. The Siddhu Kanhu University (hereinafter referred to as the University) was governed by the Bihar State Universities Act, 1976. Appointments of teachers and others in the University were governed by that Act and were made in consultation with the Bihar State University (Constituent Colleges) Service Commission, herein after referred to as the Commission, established under the Bihar State University (Constituent Colleges) Service Commission Act, 1987, herein after referred to as 'the Service Commission Act'. On 29.6.1999, the University requested the Service Commission to advertise for certain posts and make selections for appointment to those posts. One such post was that of the Registrar of the University. Pursuant to this request, the Service Commission issued an advertisement calling for applications. The last date fixed for submission of applications was 15.7.2000. The writ petitioner was working in Magadh University, governed by the Bihar State Universities Act. He applied for the post of Registrar. Since he was employed in Magadh University, his application had to be forwarded by that University to the Service Commission. This was done only on 11.9.2000, after expiry of the last date fixed for receipt of applications. On 15.11.2000, the Bihar Re-organisation Act, 2000 came into force and the State of Bihar got divided into two, the re-constituted State of Bihar and the State of Jharkhand. On re- organisation, the Magadh University continued to be in the State of Bihar, governed by the Bihar State Universities Act and the Service Commission Act. The Siddhu Kanhu University, the requisitionist, fell within the State of Jharkhand. On 13.12.2000, a notification was issued adapting the Bihar State Universities Act in terms of Section 85, Part X, of the Bihar Re- organisation Act with the modification that the Act thereafter, be called 'the Jharkhand State Universities Act, 2000'. It was provided that in the place of the expression, "Chancellor, University of Bihar", the expression, "Chancellor, University of Jharkhand" would be substituted. It was also provided that wherever in the Bihar State Universities Act, the expression "Bihar State" or "Bihar" occurred, they would stand substituted by the words "Jharkhand State" and "Jharkhand". But the Service Commission Act, 1987 was not adapted.
3. On 15.1.2001, the Service Commission sought clarification from the Universities falling within the State of Jharkhand as to whether in view of the reorganization of the State with effect from 15.11.2000 it should continue with the selection process concerning those universities or not.
4. On 16.8.2001, the Service Commission informed the writ petitioner that an interview for the post of Registrar, Siddhu Kanhu University would be held on 11.9.2001. On 28.8.2001, the Siddhu Kanhu University wrote to the Service Commission recalling or withdrawing the request it had made on 29.6.1999 for advertisement and selection to the post. On 10.9.2001, the State of Jharkhand acting through the Governor, issued a notification clarifying that the process of appointments after the 15th November, 2000, in various universities within Jharkhand would be done by the State pf Jharkhand and any recommendation made by the Service Commission or the College Service Commission will not be recognized, if it was received after 14.11.2000. In Clause 2. the Said order also stated that the recommendations for promotions under the rules which expired on 23.9.1995 and which were pending due to procedural delays would be recognized. Clause 3. provided that the order will come into force with effect from 15.11.2000. Ignoring the withdrawal of the request by the university by its letter dated 28.8.2001 and the notification dated 10.9.2001, the Service Commission went ahead with the interview and interviewed the petitioner and others on 11.9.2001. On 5.10.2001, the Chancellor issued an order to the effect that no recommendation made by the University Service Commission would be binding on the Universities of Jharkhand and the Universities in the State of Jharkhand will not honour any such recommendation. On 21.11.2001, the Chancellor modified the earlier order to the extent of vacating the embargo on promotions based on the recommendations of the University Service Commission. But the interdict regarding the recommendation and making of appointments stood untouched or was not affected. Ultimately, on 6.3.2002, the Service Commission made a recommendation that the writ petitioner be appointed as the Registrar of the Siddhu Kanhu University. This recommendation was ignored by the University. The writ petitioner thereupon made various representations. On 28.8.2002, the Registrar of Siddhu Kanhu University wrote to the Chancellor submitting that the representations of the writ petitioner seeking appointment on the basis of the recommendation made by the Service Commission be rejected. It was thereupon that the writ petitioner filed the writ petition on 12-11.2002 praying for a declaration that the Bihar University Service Commission constituted under the Bihar University (Constituent Colleges) Service Commissioner Act, 1987 continued to operate in the State of Jharkhand by virtue of Section 66 of the Bihar Re-organisation Act, 2000 and the respondents, the Chancellor, the University and the State of Jharkhand, were bound to consider and act upon the recommendation made by the Service Commission in connection with the appointment of officers and teachers in universities situated in the State of Jharkhand, including the Siddhu Kanhu University, Dumka, for a writ of certiorari quashing the letter of the Chancellor dated 5.10.2001 containing the direction not to act on the recommendation/concurrence received from the Service Commission after the creation of the State of Jharkhand until further directions from the Chancellor; for a direction to the Chancellor and to the Siddhu Kanhu University, to immediately appoint the petitioner to the post of Registrar, Siddhu Kanhu University based on the recommendation made by the Service Commission as contained in its letter dated 16,3.2002 with all consequential benefits and for a direction to the Chanccellor and the University to produce a copy of the minutes of the meeting held on 17.8.2001 referred to in the letter dated 5.10.2001 issued by the Chancellor. According to the writ petitioner, the Siddhu Kanhu University having requested the Service Commission to advertise the post and select a suitable candidate, was bound to appoint a candidate recommended by the Service Commission notwithstanding the formation of the State of Jharkhand under the Bihar Re-organisation Act, 2000 in view of Section 66 of that Act and in view of the fact that the University Act had been adapted by the State of Jharkhand and the Service Commission Act continued to be operative in view of Sections 57 and 58 of the University Act and Section 84 of the Re-organisation Act. This plea of the writ petitioner was sought to be met by contending that the request by the University was made in the year 1999 when it was a part of the State of Bihar; that on bifurcation of the State, the University fell within the territory of the State of Jharkhand; that the Service Commission Act had not been adapted by the State of Jharkhand, that in the light of the order issued by the Governor, the power for which was traceable to Section 85 of the Re-organisation Act, the recommendations by the Service Commission could not be accepted by the Siddhu Kanhu University; that even otherwise, even before the interview was held by the Commission the University had withdrawn its request or requisition and on such withdrawal, the Service Commission had no further authority to continue the process of selection or to go through the process of selection and to make a recommendation and that the right of the State of Jharkhand to make its own selection cannot be questioned and cannot be circumscribed by resort to the provisions in the University Act or the Service Commission Act and in this situation, the writ petitioner was not entitled to the reliefs prayed for. It was also contended that in any event, merely because the writ petitioner was recommended for appointment by the Service Commission, the writ petitioner would not get a right to be considered for the post and could not compel the University to employ him. Thus, it was contended that the writ petition was liable to be dismissed. The State of Jharkhand, in addition to supporting this position of the University also raised a contention that the Service Commission was not an inter-State body corporate within the meaning of Section 66 of the Bihar Re-organisation Act and consequently, Section 66 of the Act had no application. The learned Single Judge held that the Service Commission was functional in the State of Jharkhand and it had power to make recommendations. The University was therefore not justified in recalling the request made to the Commission on a misconceived reasoning that the Commission had no jurisdiction after the appointed day; that notwithstanding the adaptation/ amendment of the Bihar University Act, the Service Commission has power to recommend for appointments in the Universities now within the State of Jharkhand and the recommendations had to be dealt with in accordance with Section 58(3) of the Bihar Universities Act (now Jharkhand Universities Act) and the reason for not acting upon the recommendation of the Service Commission was not legal and valid. The learned Judge, therefore, directed the Vice-Chancellor/Chancellor of the Siddhu Kanhu University to pass a clear order on the recommendations made by the Service Commission in the light of his findings. Thus, the writ petition was allowed.
5. The learned Senior Counsel appearing for the University raised various arguments. He contended that even on the writ petitioner's own showing, the application pursuant to the advertisement made by the Service Commission was not made by the writ petitioner in time and the same should have been rejected by the Service Commission on that short ground. Secondly, he pointed out that the University having recalled its request to the Service Commission to make the selection, by its letter dated 28.8.2001, well before the date fixed for the interview pursuant to the notification issued or the advertisement made, the Service Commission had no further right or authority to proceed with the selection process and to make a recommendation or try to impose its candidate on the University. The University was a part of the sovereign State of Jharkhand created on 15.11.2000 and the State which had come into existence on 15.11.2000, had the right to decide on appointments to the various universities falling within that State and that right cannot be fettered by anything contained in the University Act or the Service Commission Act or even by the Re-organisation Act. He further contended that the order of the Governor dated 10.9.2001 was an order in terms of Section 85 of the Re-organisation Act and the said order prevented or stopped the continued operation of the Service Commission in the State of Jharkhand and the said order cannot be validly questioned by the writ petitioner. He also submitted that merely by being recommended by the Service Commission, the writ petitioner did not get a right to any appointment and consequently no writ of mandamus could be issued to the University to consider the appointment on the basis of the recommendation. He also pointed out that the Bihar Universities Act had been adapted with modifications with effect from 13.12.2000 and the expressions "Bihar" and the "State of Bihar" had been substituted by the words "Jharkhand" and the "State of Jharkhand" wherever it occurred and hence Sections 57 and 58 of the Bihar Universities Act, 1976 had become unworkable or inapplicable and, in any event, considerable confusion had arisen as to their applicability to the State of Jharkhand. If, in that situation, the Governor of Jharkhand in exercise of his executive power available under Article 162 of the Constitution of India, issued an order directing that such recommendations be not recognized, it could not be said that there was anything illegal in the notification or that there was any want of bona fides. He also pointed out that the power was traceable even to Section 85 of the Bihar Reorganisation Act and on issuance of such an order, the application of the Service Commission Act ceased in the State of Jharkhand. He emphasized that there could be no interference with the plenary power of legislation available to the State of Jharkhand under Article 246 of the Constitution and wherever the legislative power existed, the executive power could also be exercised in view of Article 162 of the Constitution of India. Learned counsel for the State of Jharkhand, in addition to supporting the arguments of learned Senior Counsel for the University, also reiterated tts contention that Section 66 of the Bihar Re-organisation Act had no application since even though the Service Commission may be a statutory corporation by virtue of the provisions of the Service Commission Act, it has not become an "inter-State body corporate" within the meaning of Section 66 of the Re- organisation Act. Counsel for the Chancellor also supported this submission and submitted that an application has also been filed by the Chancellor to transpose him as an additional appellant in the appeal.
6. As against these submissions, learned counsel for the writ petitioner, respondent No. 1, submitted that the Service Commission Act created the Service Commission and it was a body corporate as clarified by Section 2 of the Service Commission Act Itself. It was an inter-State body corporate by virtue of the provisions of Part II of the Re-organisation Act and the argument that it was not an inter-State body corporate was not sustainable. It was further submitted that the State of Jharkhand had adapted the Bihar Universities Act and Sections 57 and 58 of that Act enjoined the selection and appointment through the medium of the Service Commission and since the Bihar Universities Act had been adapted, the Service/ Commission had the jurisdiction to make recommendations based on the original request or requisition made by the Siddhu Kanhu University. The Commission was entitled to consider whether the request by the Siddhu Kanhu University to withdraw its earlier request for making the advertisement and making the selection was based on a misunderstanding of the relevant provisions of the Act and on finding that it was so based, to ignore that withdrawal of the request and to proceed to make the recommendation after completing the process of selection. The order of the Governor stopping the acceptance of th'e recommendation by the Service Commission was illegal and inconsistent with the provisions of the Bihar Re-organisation Act and hence the learned Single Judge was justified in granting relief to the writ petitioner. As regards the plea that the application of the writ petitioner in response to the advertisement was not in time, counsel submitted that no such plea had been raised by the University before the learned Single Judge and such a plea was not raised even in the memorandum of appeal with the result that the writ petitioner did not have an opportunity to set out a more detailed case on that aspect. It was submitted that the writ petitioner had sent an advance copy of his application to the Service Commission within the time prescribed and since his application had to be routed through the proper channel, the original application was later forwarded by the Magadh University in which he was employed and the Court had to consider the case of the writ petitioner based on the copy of the application sent by the writ petitioner to the Service Commission and if it is so considered, the application has to be found to be in time. Learned counsel for the University Commission submitted thai the University Service Commission found that the Siddhu Kanhu University had sought to withdraw the request it had earlier made on a misconception and hence it decided to go ahead with the selection process and it was justified in doing so in view of Sections 84, 86, 91 and the other provisions, of the Reorganisation Act. He also submitted that the argument that this was not an interstate body corporate within the meaning of Section 66 of the Act was not tenable since the Service Commission became an inter-State body corporate by virtue of the provisions of Part II of the Re-organisation Act.
7. We shall first consider the question whether the application made by the writ petitioner pursuant to the advertisement Annexure-3, was in time. There is no dispute that the last date fixed for receipt of applications was 15.7.2000. The only plea in the writ petition regarding this aspect is found in paragraph 19 thereof. Therein, it is stated in a general and vague manner that pursuant to the Advertisement Annexure-3, the petitioner duly applied through proper channel for the post of Registrar, Siddhu Kanhu University, Dumka; that the petitioner's application was duly forwarded by the Registrar, Magadh University, Gaya, to the Secretary, Bihar University (Constituent Colleges) Service Commission vide letter dated 11.9.2000. That letter of the Magadh University is marked Annexure-4. Annexure-4 does not indicate the date on which the writ petitioner applied to the Magadh University with the request to it to forward his application to the Service Commission. There is also no pleading in the writ petition that the writ petitioner had sent an advance copy of his application made to the Magadh University, to the Service Commission direct, before 15.7.2000, the last date fixed. The claim on behalf of the writ petitioner that the writ petitioner had sent an advance copy to the Service Commission which was received by it within time, was attacked by counsel for the University by pointing but that the claim was not supported by any pleading and there is a difference between pleadings in a suit and pleadings in a writ petition and in a writ petition, the petitioner was bound not only to plead that he had sent an advance copy of his application to the Service Commission, but was also bound to produce a copy thereof in support of that plea. The decision of the Supreme Court in Bharat Singh v. State of Haryana, 1988 (4) SCC 534, with particular reference to paragraph 13 thereof, was relied on in support. We find considerable force in this submission on behalf of the University. Going strictly by this emerging scenario, it may have to be held that the application of the writ petitioner for. the post of Registrar pursuant to the advertisement, Annexure 3, was beyond time, or that there was no valid application to the post on his behalf. Learned counsel for the petitioner submitted that the ground urged by learned counsel for the University, the appellant, was not pleaded in the counter-affidavit to the writ petition and was not raised before the learned Single, Judge, with the result that there was no occasion for the writ petitioner to produce the relevant materials and to make the necessary pleadings in that regard, at least, by way of reply-affidavit or rejoinder. Counsel also pointed out that even- in the memorandum of appeal, no such ground was raised and this led to the writ petitioner, who is respondent No. 1 in the Letters Patent Appeal, not finding it necessary to produce the relevant materials in that regard, at least, at the appellate stage. Counsel for the Service Commission also submitted that this aspect not having been projected in the pleadings, he was not in a position to submit what exactly was the position. If the decision in the case depended solely on this aspect, we would have been inclined to the view that further investigation of this aspect is needed and then we would have given the writ petitioner an opportunity of showing that a valid application had been made by the writ petitioner before the Service Commission in the accepted mode within the time fixed and we would have also called upon the Service Commission to produce the relevant files and to explain what was the usual procedure followed by the Service Commission in such cases. But in view of our conclusion on other aspects arising in this case, we have thought it not necessary to further pursue this aspect.
8. It is an indisputed fact that the University had made a request to the Service Commission to advertise for certain posts and to undertake a selection process for filling up certain posts in the University, including the p6st of Registrar at a time when the University was part of the undivided State of Bihar and was governed by the University Service Commission Act, 1987. As per Annexure-3, the Service Commission did advertise for the posts. The post of Registrar of the University was Advertisement No. 84 in Annexure 3. On 15.11.2000, the Re-organisation Act came into force and the University became an institution in the State of Jharkhand. On 15.1.2001, the Commission asked the Universities in Jharkhand whether to proceed with the selection process or not, in view of the reorganization of the State. On 16.8.2001, nine months after the new State of Jharkhand came into existence, the Service Commission issued an intimation to the applicants to attend an interview to be held by way of continuation of the process of selection. The interview of the writ petitioner was fixed for 11.9.2001. On 28.8.2001, the University wrote to the Service Commission recalling its request for making selections or withdrawing its request to the Service Commission to select a candidate for the post of Registrar among other posts. On 10.9.2001, a day before the date fixed for the Interview of the writ petitioner, the notification by the Governor of Jharkhand was also issued directing that the process of appointments would be undertaken after 15.11.2000 by the State of Jharkhand and any recommendations made by the Service Commission or the College Service Commission need not be recognized if it is received after 14.11.2001. It was in spite of the withdrawal of the request made by the University by its letter dated 28.8.2001 that the Service Commission went ahead with the interview on 11.9.2001 and about six months thereafter, made a recommendation to the University.
9. It is clear that the University which made the request to the Service Commission to select candidates for certain posts, had the right to withdraw that request at least before the process of selection was completed. Here, even the interview had not taken place when the University withdrew its request for making a selection. A process of selection is not complete before the list is prepared. In the absence of any provision in the Service Commission Act enabling the Service Commission to ignore the withdrawal of request by a person who made the request, the Service Commission was bound to accede to that request and not to proceed further with the selection process. At best, the Commission could have claimed the expenses from the University for the steps it had already taken pursuant to the original request made by the University, if entitled under the law. We specifically asked counsel for the University Commission whether there was any provision under any law governing it, which enabled it to ignore the withdrawal of the request by the University that made the original request or which conferred a power on the Service Commission to sit in judgment over the reasons for withdrawal referred to by the University, while withdrawing the request. Counsel frankly submitted that there was no provision. But he submitted that on finding that the basis on which the request was sought to be withdrawn by the University was not tenable according to the Commission, the Service Commission bona fide continued the selection process. Counsel for the writ petitioner submitted that the reasons given by the University for withdrawing its request to the Service Commission were justiceable and if this Court were to find that the reason given by the University for withdrawing its request were untenable, this Court was entitled to uphold the action of the Service Commission in proceeding with the selection in spite of withdrawal of the request. Counsel pointed out that the learned Single Judge had taken the view that the reason given by the University for withdrawing its request was invalid and the order of the Governor dated 10.9.2001 was also unsustainable and if the Court were to agree with that proposition, the action of the Service Commission could be upheld. We find considerable difficulty in accepting this submission of counsel for the writ petitioner. When the University which had made the original request for selection, withdrew that request for whatever be the reason, the Service Commission was bound to stop the process and was not entitled to, proceed as if there has been no such withdrawal, or to proceed to decide for itself that the withdrawal was improper. Whether at the stage at which the selection process had reached, any of the candidates who had applied had a right, to challenge such action of the Service Commission stopping the process or of the University withdrawing its request is a different matter altogether. Even if such right existed in a candidate who had responded to the original advertisement, the Service Commission certainly could not take upon itself an adjudicatory role while dealing with the request of the University not to proceed further, and its communication recalling its original request for making the selection. Moreover, in this case, considerable problems had arisen after the creation of the State of Jharkhand, adaptation of the Bihar Universities Act with effect from 13.12.2000 and the substitution of the words "Bihar" and "Bihar State" by "Jharkhand" and "Jharkhand State" and the non-adaptation of the Service Commission Act, 1987 and Section 2(3) of that act covering only Universities governed by the Patna University Act and the Bihar State Universities Act, as to whether the process of selection at the instance of the Service Commission could continue. The Commission also recognized the problem as is clear from its letter dated 15.1.2001. In that context, the Governor had also issued the notification dated 10.9.2001 and the Chancellor had also issued an order dated 5.10.2001 indicating to the Universities in the State of Jharkhand that the recommendations of the Service Cora-mission were not binding on the Universities and such recommendations need not be recognized. Therefore, it could not also be said that the University acted without bona fides when it withdrew the request to the Service Commission for making selection to several posts including the post of the Registrar. Apart from the fact that the Service Commission had no right to si( in judgment over the withdrawal of the request by the University, it also appears to us that the Commission erred in ignoring the withdrawal by the University on the facts and in the circumstances of the case. In our view, the learned Single Judge was in error in proceeding to uphold the action of the Service Commission in ignoring the withdrawal of the request by the University and in proceeding to make recommendations after completing the process. It is also seen that the Service Commission made the recommendation on 6.3.2002, almost six months after the date of interview in spite of being apprised of the position arising out of the order of the Governor dated 10.9.2001 that of the Chancellor dated 5.10.2001 and the relevant provisions of the Re-organisation Act. We are of the view that since the University had withdrawn its request for making the selection, the Service Commission had lost the right to proceed with the selection process and its action subsequent to the withdrawal is unsustainable and certainly not binding on the appellant University or the State of Jharkhand. On this short ground these appeals are liable to be allowed and the decision of the learned Single Judge is liable to be set aside.
10. Even otherwise, we are satisfied that the Service Commission under the Service Commission Act could not make a recommendation for a post in a University included within the territory of the State of Jharkhand after the reorganization. No doubt, the Service Commission Act itself declared that the Service Commission was a body corporate. Under Section 66 of the Re-organisation Act, it could be deemed to continue to function in respect of the areas it was functioning before the appointed day. It is also true that by virtue of Section 84 of the Act, the application of various enactments applicable to the State of Bihar were to apply until otherwise provided by a competent Legislature or other competent authority. But Section 85 of the Act gives power to the State of Jharkhand to adapt the laws that were applicable in the existing State of Bihar if the appropriate Government, before the expiry of two years from 15.11.2000, by order, made such adaptation or modification of laws and thereupon, every such law could have defect, subject to adaptation or modilication so made until altered, repealed or amended by the competent Legislature or other competent authority. Here, the University Service Commission Act, 1987 was not adapted by the State of Jharkhand. Nor did the Legislature, at the relevant time, intervene to enact a new law, though, now, by an amendment on 6.5.2003, the process of selection has been entrusted to the Jharkhand Public Service Commission. But there was an order by the Governor to the effect that the process of appointments after 15.11.2000 will be done by the State of Jharkhand and that no recommendation made by the University Service Commission received after 14.11.2001 will be recognized. As we understand it, in terms of Section 85 of the Re- organisation Act, the order will clearly interfere with the application of the University Service Commission Act, 1987 to the State of Jharkhand. Such an executive order could also be supported by reference to Article 162 of the Constitution of India, since the Legislature certainly had the power to say that the recommendations should be made by a body other than the Service Commission which had been created when the State remained undivided. The learned Single Judge has relied upon Sections 57 and 58 of the Universities Act to find that the selection process could be continued to be undertaken by the Service Commission. Though they might be somewhat technical, the fact remains that on adapting the. Bihar Universities Act, the expression 'the Bihar State Universities (Constituent Colleges) Service Commission.' referred to in Section 57 of the Universities Act had been converted into the "Jharkhand State Universities (Constituent Colleges) Service Commission". The Section in the Commission Act conferring power referred to universities governed by Patna University Act and Bihar State Universities Act.
Here, by adaptation, the Universities had come under the Jharkhand Universities Act, 2000 and there is no reference to that Act in the relevant provision. The learned Single Judge has observed that since admittedly the Jharkhand Universities (Constituent Colleges) Service Commission had not been constituted and since the Bihar State Universities (Constituent Colleges) Service Commission Act, 1987 has not been amended, adapted, or repealed by the State of Jharkhand and the Service Commission Act was an independent Act, in spite of the adaptation and modification of the Bihar Universities Act, the power of the Service Commission under the Service Commission Act could not be divested. With respect, we are not in a position to agree. It is open to the State of Jharkhand which had come into being on 15.11.2000 to decide upon the agency that should carry on the recruitment for the services in its Universities, until legislation in that behalf was brought into force by the State newly born. Lest there be a vacuum, the laws of the unified State of Bihar had to continue in operation. But that continued operation, could be stopped by the State of Jharkhand, not only by way of legislation, but also by way of an executive order like the one issued by the Governor of the State. The said order is certainly traceable to the power derived from Section 85 of the Re-organisation Act. It is no doubt true that the order dated 10.9.2001, Annexure-10, does not specifically refer to Section 85 of the Reorganisation Act. But it is settled that even if the source of power is not mentioned, if the power is traceable to a particular source, the Court would be jusified in finding the exercise of power valid and in not ignoring it as beyond the competence of the executive. It is in this context that we have also to remember the power available to the executive in terms of Article 162 of the Constitution of India. This is, of course, in addition to the technical aspects pointed out by counsel for the University. Based on the adaptation of the Bihar Universities Act, the substitution of the expression 'Bihar' and the 'Bihar State' with 'Jharkhand' and Uharkhand State' and altering the year of the enactment, the Act has become one different from the Bihar Universities Act. 1976. In that context. Section 57 of the Act speaks of the Bihar State Universities (Constituent Colleges) Service Commission clearly excluding Jharkhand Service Commission. On the whole, we are of the view that in the face of Annexure-10, the order issued by the Governor, the Service Commission could not make a valid recommendation, unless the recommendation made, had been received by the University in the State of Jharkhand, before 14.11.2000. In our view, the learned Single Judge was in error in holding that the Service Commission was functional in the State of Jharkhand, notwithstanding the amendment/adaptation of the Bihar Universities Act, the non- adaptation of the Service Commission Act and the order of the Governor. With respect, we are of the view that the decision of the Supreme Court in Shri Swamijl of Shri Admar Mutt v. Commissioner, Hindu Religious & Charitable Endowment Department, AIR 1980 SC 1, can be of no help to resolve the issue involved in this case. We have already held that the learned Single Judge was in error in holding that the University was not justified in recalling the request it had made since, according to him, it was on a misconceived reasoning that the Commission did not have the jurisdiction after the appointed day. We find the action of the University proper and that of a prudent responsible body. We are of the view that what is relevant is the factum of withdrawal of the request and not the reason that might have weighed with the University to withdraw its request. On the materials, we have already held that the withdrawal was justified in the circumstances.
11. The learned Government counsel argued that Section 66 of the Re-organisation Act had no application since the Service Commission was not an inter-state body corporate as defined in the Inter-State Corporation Act, 1957. Of course, as rightly pointed out by him, this is not an inter-State corporation constituted under any of the Acts included in the schedule to that Act, Since the University Commission Act is not in the schedule to that Act, the corporation cannot be treated as an inter-State corporation. But Section 66 of the Re-organisation Act says that an existing corporation in the existing State of Bihar would become a body corporate by virtue of the provisions of Part II of the Re-organisation Act. Part II of the Re- organisation Act deals with the formation of the State of Jharkhand. May be, in a strict sense, there should have been a corresponding amendment of the schedule to the inter-State Corporation Act, 1957. On the wording of Section 66 of the Re- organisation Act, 2000 alone, it may or may not be possible to reject the argument of the learned Government counsel. But we find that it is by virtue of the provision in Part II of the Reorganisation Act that the corporate body became an inter-State corporate. We think that there is no need to place a restrictive interpretation on Section 66 of the Re-organisation Act or to go to the definition of inter-State corporate in Inter-State Corporation Act, 1957 in this context. We are inclined to the view that the University commission which is a body corporate by virtue of the Act constituting it, must be considered to have become an inter-State body corporate as understood by Section 66 of the Bihar Re-organisation Act. We therefore overrule the argument raised in that behalf by the learned Government counsel.
12. We also find considerable force in the submission of counsel for the University that a mere inclusion in the select list or based solely on a recommendation made by the University, no right to appointment is conferred on the writ petitioner. It was open to the Government of Jharkhand not to accept the recommendation of the Commission and at best it may have to place its reasons for doing so before the State Legislature. Under Section 58 of the University Act, the Vice-Chancellor could have rejected the recommendation. It cannot therefore be said that a right to appointment had been conferred in this case on the writ petitioner. Of course, the learned Single Judge has not directed that the writ petitioner be appointed by the appellant University. But he has directed to deal with the recommendation in accordance with Section 58(3) of the Bihar Universities Act (now Jharkhand Act) and he has also held that the reasons for not acting upon the recommendation was not legal and valid and directing the Vice-Chancellor/Chancellor of the Siddhu Kanhu University to pass a clear order on the recommendation made by the Commission in the light of the directions issued by him. Since it is not possible to understand the direction of the learned Single Judge as still leaving, Vice Chancellor/Chancellor and the Government of Jharkhand with an option of refusing an appointment, the direction can be understood practically as one to appoint. At best the direction could have been only one to consider the claim of the writ petitioner. In the circumstances, in any event, the direction of the learned Single Judge has to be understood to be only one such.
13. In view of our conclusion that the Service Commission could not proceed with the selection after the request was withdrawn by the University and that the recommendation made on 6.3.2002 could not be honoured, in view of the order of the Governor, Annexure-10 and in the light of the relevant provisions of the Re- organisation Act, 2000, the decision of the learned Single Judge has to be set aside and the writ petition filed by the writ petitioner has to be dismissed. Hence, we allow these appeals, set aside the judgment of the learned Single Judge and dismiss W.P. (S) No. 6084 of 2002. We make no order as to costs.
R.K. Merathia, J.--I agree.