Nagendra Rai, J.:— This appeal under clause 10 of the Letters Patent of the Patna High Court is directed against the order dated 28.4.2000, passed in CWJC No. 2773 of 1998, by a learned Single Judge of this Court whereby he has held that unless the case of absorption of respondent No. 2, Madan Mandal, against the first post of lecturer in the faculty of Commerce in the Lohia Charan Singh College, Ambedkar Nagar, Darbhanga, is finally decided, the said post cannot be filled up on the basis of the recommendation of the Bihar College Service Commission, Patna (hereinafter referred to as the Commission). However, he has directed that fresh recommendations against the 2nd, 3rd and 4th vacant posts in the said faculty in the college be made.

2. The appellants, two in number, filed the writ petition giving rise to the present appeal for a direction to the Governing Body of the aforesaid College and its office bearers to appoint them on the post of lecturer in commerce faculty as their names have been recommended by the Commission. The factual matrix for disposal of the present appeal are that the College in question was established in 1979. After inspection, the Lalit Narayan Mithila University recommended its case to the State Government for affiliation. The Government granted interim affiliation, and granted permanent affiliation in 1990. By letter dated 21.10.1986 the Government sanctioned the posts of Principal and lecturers in different faculties in the said College without any financial liability. Two posts of lecturer were created in the faculty of Commerce, but later on two more posts were created and on the request made by the Governing Body of the College, an advertisement was issued for filling up of four posts of lecturer in the said subject by Advertisement No. 695 of 1989. The appellants, respondent No. 2 (Madan Mandal), and others applied and went through the selection process, and the Commission on 8.4.1997 recommended the names of four persons against the four vacant posts. The name of appellant No. 1 was recommended as the first nominee for the first post, the name of appellant No. 2 as the first nominee for the second post, and names of others have been recommended for third and fourth posts not relevant in the present context. The name of respondent No. 2 was not recommended against any post. The Governing Body thereafter did not make appointment which necessitated the filing of the writ petition before this Court.

3. The stand of the appellants is that, according to the statutory provision, the only mode of appointment to the post of teachers of affiliated colleges is on the basis of the recommendation of the Commission and as their names have been recommended, they should be appointed to the said post.

4. The stand of the Governing Body, on the other hand, is that respondent No. 2 (Madan Mandal) is working against the first post of lecturer in Commerce since 1981 and his case is pending for regularisation/absorption in terms of the statutory provision and unless a final decision is taken for his regularisation/absorption, the first post cannot be filled up on the basis of the recommendation of the Commission.

5. Respondent No. 2 (Madan Mandal) had appeared before the Commission as a candidate for appointment for filling up four posts, but he was not selected. In this appeal, the appellants have added him as party respondent no. 2 in view of the stand taken by the Governing Body. Respondent No. 2 has appeared and his stand is that he is 2nd class M.Com An advertisement was issued in Indian Nation for filling up the first post in the faculty in question. The selection Board was constituted. He and others applied and he was selected and appointed by letter dated 6.10.1980, and in pursuance of which he joined on 6.1.1981 According to the statute issued by the State Government on the recommendation of the Bihar State University Board and approved by the Chancellor on 29.1.1986, he is entitled for regularisation of his services and the matter has been referred to the Governing Body to the University in 1994 and up till now no decision has been taken. As he has claimed regularisation against the first post, appointment of appellant No. 1 against the first post in the said faculty can not be made.

6. The learned Single Judge as stated above accepted the case of the Governing Body and held that till the question of regularisation/absorption of Madan Mandal is finalised, the first post of lecturer in the faculty of Commerce cannot be filled up on the basis of the recommendation of the Commission and remitted the matter to the Commission, Patna, to make recommendation against 2nd, 3rd and 4th posts in the said faculty. The learned Single Judge also directed the University authorities to decide the question of absorption of respondent No. 2 within the period specified therein.

7. The learned counsel for the appellant submitted that according to the provisions of Section 57 and 57A of the Bihar State Universities Act, 1976 (hereinafter referred to as the Act), and the provisions of Section 2(10) of the Bihar College Service Commission Act, 1976, (hereinafter referred to as the Commission Act), the only mode of appointment of teachers of affiliated colleges is on the basis of the recommendation of the Commission and the said mode cannot be given go by taking recourse to the statute approved by the Chancellor under Section 5(2) of the Bihar State University (sic—Inter-University) Board Act, 1981 (hereinafter as the Board Act). The said statute is ultra vires as there is no power vested in the State authority to make provision for regularisation under the Board Act. He also submitted that even assuming that such direction can be issued under the Board Act, the said scheme or direction being contrary to the statutory provisions contained under the aforesaid Act, the same cannot be given effect to by circumventing the statutory provisions under the aforesaid Act.

8. The learned counsel appearing for the Governing Body as well as on behalf of respondent no. 2 submitted that the statute which has been issued under the Board Act and approved by the Chancellor has the force of law and as there is provision for regularisation of services of teachers fulfilling the conditions mentioned in the said statute and respondent no. 2 fulfils the same, his case for regularisation has to be considered first before filling up the first post in the faculty in question by direct recruitment. He also submitted that the statute framed under the Board Act and approved by the Chancellor is in no way contrary or in conflict with the statutory provision rather it is supplemental to the same and as such they can also be given effect to while following the procedure for appointment as provided under the aforesaid Act.

9. To appreciate the point raised at the Bar, it will be apt in the beginning to state the statutory provisions which are relevant and have a bearing on the question in controversy.

10. The Act was enacted in 1976. Section 57 of the Act contained a provision with regard to appointment to the post of teachers and officers in the University. The original provision provided that subject to the provisions of the Act and the statutes, the appointment of teachers and officers of the University shall be made on the recommendation of Bihar Public Service Commission and other teachers for whom no separate provision has been made under the Act shall be made on the recommendation of Bihar University Service Commission. The said Act was amended by Act 68 of 1982 and the mode of appointment remained the same. However, Section 57A was incorporated in the Act by Act 68 of 1982, containing provision with regard to appointment of teachers of affiliated colleges not maintained by the State Government. The said provision runs as follows:

57A. (1) Appointment of teachers of affiliated colleges not maintained by the State Government shall be made by the Governing Body on the recommendation of the College Service Commission. Dismissal, termination, removal, retirement from service or demotion in rank of teachers of such colleges shall be done by the Governing Body in consultation with the College Service Commission in the manner prescribed by the statutes:

Provided that the Governing Bodies of affiliated minority colleges based on religion and language shall appoint, dismiss, remove or terminate the services of teachers or take disciplinary action against them with the approval of the College Service Commission:

Provided further that the advice of the College Service Commission shall not be necessary in cases involving censure, stoppage of increment or crossing of efficiency bar and suspension till investigation of charges is completed.

(2) Recommendation for the appointment of teachers of colleges shall be made in accordance with the following provisions:

(a) College Service Commission shall give its consent/recommendation for the appointment, dismissal or termination etc. of teachers of affiliated colleges till the date of their being made constituent colleges. Its consent/recommendation shall be deemed valid only till that date.

(b) If an affiliated college becomes a constituent college of a University by the time the recommendation of the College Service Commission is received, the Syndicate shall take action in accordance with sub-section (4) of Section 57 of the said Act, as if the recommendation has been made by the Commission.

(c) For the purpose of absorbing the service of the teachers of the affiliated colleges, who were appointed by the governing Body of the College against the sanctioned posts before the establishment of the College Service Commission and whose services have been approved by the University as the services of such teachers who were appointed by the Governing Body on the recommendation of the University Service Commission (Dissolved College Service Commission) as the case may be, approval of the Bihar State University (constituent Colleges) Service Commission shall be necessary, and such teachers shall be absorbed in the University Service from the date of making the college constituent and their seniority shall be determined according to the rules prescribed in the Statutes.”

11. In the year 1976, the State Government enacted Bihar College Service Commission Act, which was published in the Gazette on 26.2.1977 containing a provision for appointment of teachers of the affiliated colleges and Intermediate Colleges in the State of Bihar. Section 2 contains a provision with regard to establishment of the College Service Commission and its power and functions. The relevant provisions are sub-sections (9) and (10) of the said Section which are as follows:

“(9) The Commission shall recommend for appointment to every post of teacher names of two persons arranged in order of 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.”

12. In 1981, the State Government enacted Bihar Inter University Board Act, 1981 (Bihar Act 27, 1982) which was published in the Bihar Gazette on 24.1.1982, for having a coordination amongst the different universities in the Bihar. Section 5 of the Board Act contains a provision with regard to functions of the Board. The english translation of the aforesaid provision as done by the Translation department of this Court is as follows.

“Functions of the Board.—(1) The said Board shall give advice to the Chancellor/State Government on the following matters:

(a) Bringing development in the Universities of the State as well as in the teaching and research, especially improving the standard of post graduate teaching and research.

(b) Improving the standard of different Universities examinations and bringing desired reforms therein.

(c) Bringing improvement and excellence in teaching standard of University as far as possible.

(d) To suggest means for bringing desired uninformity in the statutes, ordinances, regulations and rules of different Universities.

(e) Making arrangement of training for the University teachers in order to improve their personal qualification.

(f) Selecting any other subject for proper implementation of the higher education policies of the State.

(g) Review of development plans sanctioned for the Universities and giving advice in respect of steps for their implementation.

(h) Implementing the decisions of the Board.

(2) Notwithstanding anything contained in Patna University Act, 1976 (Bihar Act 24, 1976) and Bihar State Universities Act, 1976 (Bihar Act 23, 1976) and any Act/Ordinance formulated by the State Government for any other University, the State Government in consultation with the Inter University Board, may consider the matter specified in the aforesaid sub-section (1) and may recommend the Chancellor, in accordance with the said consultation or with such modification which the State Government deem fit, for taking proper action and the Chancellor may direct the University as such in this regard. Such direction shall be binding on the University and the University shall comply such direction within the period prescribed by the Chancellor.”

13. In accordance with the provisions contained in Section 5 of the Board Act, the State Government after having consultation with the Inter University Board made recommendation to the Chancellor with regard to regularisation of the services of purely temporary lectures appointed on or before the 28th February, 1982, and the said provision was approved by the Chancellor on 29.1.1986 which runs as follows.

1. A purely temporary lecturer, who is in the service of the University or of a College admitted to it as a lecturer shall be appointed by the Syndicate or the Governing Body as the case may be in the regular service of the University or the College concerned, if he fulfils the following conditions;

(a) That, he had been appointed as a lecturer in the service of the University or the College concerned on purely temporary basis on or before the 28th February, 1982 and has been since then continuing in the service of the University/College as such

[(b) that, he possess at least a Second class Master's degree in the subject]

(c) That, the post on which the lecturer concerned had been appointed was duly sanctioned by the competent authority [or the proposal for sanction of the post had been submitted by the University/College to the State Government in the Education Department on or before 28.2.1982 which was subsequently approved by State Government or the said proposal is still under consideration of the State Government];

(d) that, the appointment had been made on the basis of advertisement of the post in the Indian Nation, Searchlight, Aryavarta, Pradeep or in any other daily Newspaper of Bihar State or in a leading newspaper of India and from the panel recommended by a Selection Committee constituted by the University/College for the purposes assisted by an expert or experts;

(e) that, his work has been found to be satisfactory; and

(f) that, the Chancellor, on the recommendation of a Committee constituted by him consisting of (i) the Vice Chancellor/Pro-Vice-Chancellor of the University, (ii) an Officer nominated by the State Government and (iii) two experts nominated by the Chancellor, is satisfied that the candidate fulfils the conditions laid down above:

Provided that the Chancellor may in the case of individual hardship in respect of any lecturer appointed at the time of starting of the College against the first post in the department, relax any of the conditions prescribed in clause (d) above.

N.B—The conditions prescribed under clause (d) above shall be deemed to be fulfilled if the name of the lecturer concerned had ever been recommended by Bihar Public/University Service Commission for appointment to the post of lecturer or if his appointment as lecturer had ever been made in the post on the basis of advertisement and selection as requried above.

2. The committee constituted under clause (f) above shall meet from time to time on such dates as may be fixed by the Vice-Chancellor and finalise its recommendation in respect of all purely lecturers within a period of four months from the date of implementation of these statutes.

The Registrar shall, as early as possible, prepare a statement of all temporary lecturers in the service of the University who fulfil the prescribed conditions for consideration by the Committee. In case of Admitted Colleges, the Principal of the college concerned shall prepare a statement in respect of the temporary lecturers of his college and send the same along with all the relevant papers to the Registrar for consideration by the Committee. The recommendation of the committee shall be submitted to the Chancellor for his approval.

4. Subject to the conditions prescribed in the Statutes relating to qualifications of teachers regarding stoppage of increments, lecturers absorbed in the regular service under the above provisions shall draw their first increment in the prescribed scale on completion of one year of service from the dates of their appointments from which they have been continuing in service without any break.

5. The seniority of lecturers absorbed in regular service under the above provisions shall be determined from the dates of their absorption which shall be so fixed that their inter-se-seniority, as it existed before their absorption in the service of the University or the College, as the case may be, remains unaffected.

6. These Statutes shall not be applicable to the temporary lecturers appointed after 28.2.1982”

14. A perusal of the provisions contained under the Act, it is clear that when the Act was enacted the appointment of teachers and officers in the University was to be made by the Bihar Public Service Commission and the appointment of such teacher for whom no separate provision was made in the Act, was to be made on the recommendation the Bihar University Service Commission. In 1976, the Commission Act came which contained a specific provision that only mode of appointment of teachers of the affiliated colleges is on the basis of the recommendation of the Commission. The Act was also amended in 1982 and 57A was brought on the statute book containing similar provision as contained in the Commission Act that the appointment has to be made on the basis of the recommendation of the Commission.

15. Thus, according to the statutory provision contained under Section 57A of the Act and the provision of the Commission Act, the only mode of appointment to the teachers of affiliated college is on the basis of the recommendation by the Commission. The question is as to whether the said provision can be amended or modified by the statute issued or framed under the provisions of the Board Act. The law is well settled that there is no requirement that there should be statutory rule for creating a post and making appointment on the said post. The executive power of the State is co-extensive with the legislative power and under Article 162 of the Constitution, the State can create and fill up the civil posts by issuing executive instruction provided they are not inconsistent with the requirements of Articles 14 and 16 of the Constitution, but if the Act or Rules have been made containing a provision with regard to mode of appointment then that has to be made in accordance with that and the executive power can be exercised only to supplement the said provision and not to supplant the same. If a process of recruitment has been provided, then regularisation is not permissible by ignoring the said procedure unless it is shown that the provision regarding regularisation has a support of law. In other words, the statutory provision with regard to mode of appointment cannot be given go bye on the basis of provision which is neither permissible under the Act in question nor has the statutory sanction in the sense of competency in the authority concerned to issue such instruction or statute. The question for consideration is as to whether the statute providing mode of regularisation for temporary teachers has a sanction in the law in the sense that the State Government with the approval of the Chancellor has power to make such statute under Section 5(2) of the Board Act. The object of the Board Act as stated above, is only to bring a coordination among the different Universities. Section 5 of the Board Act prescribes function of the Board and states that with regard to matters enumerated in sub-section (1), it can advice the Chancellor and the State Government and sub-section (2) provides that notwithstanding any provision contained under the Act in question or other Acts dealing with the Universities, the State Government on the advice of the Board with regard to matters enumerated in sub-section (1) will make recommendation to the Chancellor and the Chancellor thereafter issue direction to the University which will be binding on it. Even if broader meaning is given to the provisions enumerated in sub-section (1) of Section 5 of the Board Act, it does not authorise the Board to advise with regard to regularisation of services of temporary teachers. Thus, the said provisions do not authorise the State Government and the Chancellor after consulting the Board to issue directions contrary to the directions contained in Section 57A of the Act or the Commission Act for the simple reason that the State Government and the Chancellor can issue direction only with regard to matters enumerated under Section 5(1) of the Act. The provisions with regard to mode of appointment of lecturers is not covered by any of the clauses of Section 5(1) of the Board Act. In other words, the State Government or the Chancellor has no power to issue any direction providing a mode of appointment of a lecturer contrary to the provision contained under Section 57 A of the Act and the provisions of the Commission Act. Providing a mode of regularisation of ad hoc teachers contrary to the statutory provision contained in these two Acts cannot be said to be improvement and excellence in teaching standard of the University which is one of the functions of the Board with regard to which direction can be issued by the Chancellor or the State Government. Thus, I am of the view that the statute in question cannot be given effect to by circumventing the statutory provision specifically with regard to appointment of teachers in the University. As such even if respondent no. 2 (Madan Mandal) fulfils the criteria as laid down in the aforesaid statute, he is not entitled to regularisation of his service especially when he had also appeared before the Commission, but was not selected. As there is only one mode of appointment to the teachers in the University, i.e, on the basis of the recommendation of the Commission, and the names of the appellants and other have been recommended, the Governing Body is directed to consider their cases and make appointment within a period of three months.

16. In the past, regularisation of services of the teachers of the Universities in this State has been made on the basis of the said statute. The regularisation matter finally concluded shall not be reviewed or recalled, but hereinafter the said statute or any other statute of the same nature issued under Section 5 of the Board Act shall not be given effect to. The pending cases shall be disposed of in accordance with law laid down in the present. In the result, this appeal is allowed and the impugned order dated 28.4.2000, passed in CWJC No. 2773 of 1998, by a learned Single Judge of this Court is set aside.

17. S.K Katriar, J.:— I agree.