- (1.) HEARD counsel for the parties. The respondent No. 3 and 4 were although served notice but they have chosen not to appear and contest the case.
(2.) THE question posed before this court is whether it should exercise its discretionary jurisdiction by issuing the writ of quo -warranto quashing the appointment of Respondent No. 5 for the post of Principal at Baghmara College, Baghmara, Dhanbad. The facts which are not in dispute are as follows: - The Baghmara College was established in the year 1979 as intermediate college. The Respondent No. 5 was appointed as lecturer in the year 1981 by the governing body of the said college. The college was imparting teaching of intermediate courses and subsequently, the University gave temporary affiliation to the college to impart teaching in degree courses on 10.6.1988 from the Sessions 1987 -88 onwards. The college in question continued to have extension of such affiliation till it was finally granted permanent affiliation up to degree standard by the Government of Bihar vide letter No. 883 dated 10.6.2000 which was communicated by the University vide its memo no. 4434 dated 17.7.2000 (Annexure R -5/F series). The respondent no. 5 applied for concurrence of his appointment as lecturer before the Bihar College Service Commission(B.C.S.C.), Patna against the advertisement no. 41 of 1994 pursuant whereto the Commission granted concurrence vide letter dated 21.12.1998 for the post of Mathematics teacher by recommending 2 names including that of the respondent no. 5, who was recommended as first preference. Thereafter, respondent no. 5 applied for recommendation from B.C.S.C against the advertisement no. 13 of 1999 for being appointed as Principal of the said Baghmara College upon which the Bihar College Service Commission(B.C.S.C.) issued its recommendation letter dated 3.1.2000 recommending the name of respondent no. 5 for the post of Principal in the said college. The Commission this time recommended only one name of respondent no. 5, who was thereafter, appointed by the college as Principal w.e.f. 22.7.2000.
(3.) THE respondent no. 5 continued as Principal of the said college when in the year 2007 the present petitioner preferred this writ petition seeking issuance of writ of quo -warranto challenging the appointment primarily on two grounds. First that the B.C.S.C contrary to Section 2(9) of the Act under which it was created and the judgment rendered by the Single Bench of this Court in C.W.J.C. No. 1133 of 2000(R) dated 8.10.2002 made sole recommendation while it was obliged to make at least two recommendations for any post of teachers/Principal for any affiliated college. The second ground on which the petitioner rest his submission is that the respondent no. 5 does not fulfill the minimum qualification laid down under the statute dated 24.4.1978 for appointment of teachers in affiliated degree colleges as also under the terms of the advertisement no. 13 of 1999 which are peri -meteria to the provisions of the statute and are annexed as Annexure -R -5/A series as well. According to the petitioner since the B.C.S.C made recommendation for respondent no.5 for his appointment as lecturer in the said college only on 21.12.1998 he did not fulfill the minimum required eligibility condition of 12 years of teaching experience as lecturer in a degree college / University department as required under the statute and under the advertisement under which the recommendation was made. Counsel for the petitioner, therefore, submits that the respondent no.;