Satyeshwar Roy, J.:— The petitioner in this application has prayed for issuance of a writ of certiorari quashing annexure 13 by which respondent no. 4 was transferred as Principal, Jhumak Mahaseth Dr. Dharmpriya Lall Mahila Mahavidyalaya. Madhubani (hereinafter to be referred to as “the College”) and Annexure 16 by which annexure 13 was modified, but not with regard to respondent no. 4. Prayer has also been made for declaration that the petitioner is the Principal of the College and not the Professor in charge as described in annexure 12, The main claim of the petitioner is that her services as a teacher before the College was affiliated to the Intermediate Council shall have to be counted for the purpose of computing whether she had the requisite teaching experience for allowing her to continue as Principal after the College was made a constituent college.

2. The writ petition was heard on a number of days by a Division Bench. The Division Bench noticed that on the point whether the teaching experience of a person in a college not affiliated shall be considered for calculating total years of experience as a teacher, there are two conflicting judgments of this court. In C.W.J.C No. 1077 of 1968; Ramawtar Prasad Agrawal v. Ramchandra Prasad Sharma, disposed of on 21st July 1971, it was held that teaching experience of a lecturer in an unaffiliated college shall have to be reckoned, whereas in Sri Chandra Deo Jha v. The State of Bibar, 1982 BLJ 362; it was held that such teaching experience cannot be taken into consideration. In view of these two conflicting judgment of two Division Bench of this court, the matter was referred to a larger Bench. This is how this matter has been listed before this Bench. When the application was taken up for hearing, learned counsel appearing on behalf of the parties submitted that transfer of respondent no. 4 as Principal of the College has been revoked and in his place nobody has been posted as Principal. In view of this development during the pendency of this writ application, prayer of the petitioner also for quashing annexures 13 and 16 has become infructuous. The only question which remains to be decided is; whether the petitioner in the facts of this case can claim that she is entitled to continue as Principal of the College.

3. According to the petitioner, the College was established on 1.8.1971 and by Annexure 1 dated 1.9.1971, she was appointed by the then Managing Committee as Lecturer on temporary basis in the Department of Hindi for a period of six months. The post of the Principal was advertised and she applied. She was promoted temporarily by Annexure 5 to that post on 11.7.1977 The College was affiliated upto Intermediate standard by annexure 7, notification dated 6.10.1982 of the Intermediate Education Council with effect from 1.6.1981 The petitioner was said to have been confirmed as Principal in 1983. By Annexure 8, the college was affiliated upto Degree standard on 3.10.1985

4. In the counter affidavit filed on behalf of the University, it was stated that the appointment of the petitioner as Lecturer and as Principal during the period when the College was not affiliated was of no consequence. The appointment of the petitioner as Lecturer and/or Principal was not on the basis of the recommendation/concurrence of the College Service Commission. On 11.7.1977 the date on which the petitioner was said to have been appointed as Principal she had not the requisite teaching experience and, therefore, her appointment was not valid. The factum that when the College was made a constitutent College, the petitioner was working as Principal has been denied. It has been stated that she was Professor In-charge of the College.

5. The points which are involved in this writ application are:—

(A) For the purpose of computing teaching experience of a College teacher, whether the teaching experience said to have been acquired in a college which was not affiliated shall have to be taken into consideration;

(B) Whether a Lecturer who has not the required teaching experience but was appointed Principal of a College can claim that in view of the fact that he has subsequently acquired the experienced, he was entitled to continue as Principal.

6. As the College was estaalished in 1971, during the course of hearing of the writ application, reference was made to the Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) Act, 1960 (hereinafter to be referred to “1960 Act”). As the College was affiliated upto Intermediate standard in October, 1982, when the Bihar State Universities Act, 1976 (hereinafter referred to as “1976 Act”) was in force and 1960 Act had been repealed, different provisions of 1976 Act were also referred. The Statutes framed under the Acts were placed before us. It will be convenient to notice the provisions of the Acts and the Statutes at this stage.

7. I will first refer to 1960 Act and the Statutes. In section 2(d) “college” has been defined to mean an institution admitted to or maintained by the University, in accordance with the provisions of this Act, in which instruction is given, subject to the provisions contained in clause (15) of section 4, to the students of the College upto and including a standard below the postgraduate standard under the conditions prescribed in the statutes.

8. Section 48A, inter alia, provides for establishing University Service Commission and sub-section (6) provides that subject to the approval of the University, appointments, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated College not belonging to the State Government shall be made by the governing body of the college on the recommendation of the Commission. Sub-section (9). inter alia, provides that in no case shall the governing body appoint a person who is not recommended by the University Service Commission. Notwithstanding the aforesaid provision, in sub-section (10) provision is made that it shall not be necessary for the governing body to consult the Commission if the appointment to a post of teacher is not expected to continue for more than six months and cannot be delayed without detriment to the interest of the College, provided that if it is proposed to retain the person so appointed in the same post for a period exceeding six months or to appoint him to another post in the college, the concurrence of the Commission shall be necessary in the absence of which the appointment shall be deemed to have been terminated at the end of six months.

9. Reference was made at the Bar to Article 2 of Chapter XII of the Statutes framed under section 30(d) of 1960 Act which provides for making an application for affiliation of an educational institution as a college. Article 3 prescribes the contents of such application. In such application, sufficient information shall have to be given to satisfy the Syndicate that no student has been or shall be admitted to the institution or in the subject or subjects for the admission of which the application is being made, unless the admission prayed for has been granted by the University and approved by the State University Commission. Article 6, inter alia, provides that the decision of the Senate with regard to the application for affiliation shall be communicated to the institution concerned specifying the courses of instruction in which it is admitted and the standard upto which admission is granted together with the conditions and limitations imposed. It further provides that no admission shall be made in the college unless the Syndicate is satisfied that conditions necessary for starting classes have been fulfilled. Article 1(1)(a) of Chapter XVI lays down that for appointment of Principal in a Degree College it is necessary that the candidate must have at least 10 years teaching experience of which at least seven years must be in a degree college or 5 years experience as a Principal of an Intermediate College.

10. In 1976 Act, section 2(c) defines “affiliated college” to mean educational institution having received privileges of the University according to the provisions of this Act and the University Statutes relating thereto. “College” has been defined in section 2(f) as an institution maintained and controlled by the University or maintained by the State Government. Section 57 A(1) provides that appointment of teachers in affiliated colleges shall be made by the governing body on the recommendation of the College Service Commission. Section 57A(2)(C), inter alia, provides that for the purpose of absorbing the services of the teachers of affiliated college which becomes a constituent college of the University and who are appointed by the governing body of the college against a sanctioned post before the establishment of the College Service Commission and whose services have been approved by the University as also the services of such teachers who were appointed by the governing body on the recommendations 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. Section 59(2) provides for framing of statutes wherein, inter alia, provision in respect of colleges affiliated by the University shall be made for approval of the action taken by the governing bodies of such colleges in regard to creation of posts of teachers, their appointments, dismissal, discharge, removal from service, termination of service and determination of terms of post and to approve the deputation of teachers to the Intermediate College delinked from the affiliated colleges. The statutes framed under 1960 Act were saved by section 76 of 1976 Act on certain conditions.

11. Learned counsel appearing on behalf of the petitioner (Mr. Prasad & Dr. Jha) submitted that till the college was affiliated, laws of the University have no application. Consequently, there was no necessity for obtaining the approval of the University for creating post in an unaffiliated college or for making appointment of teachers in such college on the recommendation of the Commission or by its concurrence and approval of the University. According to them, the service conditions of a lecturer of an unaffiliated college shall be governed by the terms of contract between the Managing Committee and the lecturer. It was submitted that notwithstanding the fact that the laws of the university have no application to an unaffiliated college, teaching experience acquired in such a college shall have to be counted for the purpose of calculating years of teaching experience. Reliance for this submission was placed in Ramawatar (supra), particularly on the observation of Untwalia, J. (as his Lordship then was).

12. Not only posts can be created after the approval of the University and appointments can be made only after the recommendations and/or concurrence of the Commission and/or University, the laws of the University provide that no student shall be admitted unless the college is affiliated. Now if no student can be admitted, there is no question of acquiring teaching experience in such a college. In view of the different provisions of the Law of the University noticed above, if we take judicial notice of the experience acquired by the petitioner as a lecturer before the college was affiliated, we will do violence to the University Acts and Statutes framed thereunder. Court is to enforce law and not violate it.

13. Learned counsel appearing on behalf of the petitioner however, urged that this is not the correct legal position as has been held by Untwalia, J. (as his Lordship then was) in Ramawatar (supra). In Ramawatar (supra), the petitioner had challenged the resolution of the governing body appointing respondent no. 1, Ram Chandra Prasad Sharma (for short “Sharma”) as Principal of S.R.K.C College, Sitamarhi on the ground that Sharma had not the minimum ten years teaching experience. Akbar Hussain, J. one of the Hon'ble Judges in the Bench, on the basis of the definition of the “College” of Magadh University Act, 1961, held that Sharma had requisite teaching experience. Untwalia, J. while agreeing with Akbar Hussain, J., noticed section 2(e) of the Magadh University Act where college has been defined and Chapter XV of Article 6 of Magadh University statutes which provides that a person must have at least ten years teaching experience in degree college for being appointed as a Principal of an affiliated college. The stand of respondent no. 1 in that case was that the experience must be acquired in a degree college affiliated to the Magadh University. In that situation, Untwalia, J., observed that if this was accepted then no person can be appointed as Principal of an affiliated college in Magadh University before 1973 as the University itself was established in 1962. To remove this “impractical and unreasonable aspect” it was held that teaching experience may be acquired in an unaffiliated college.

14. In Ramawatar (supra), respondent no. 1 (Sharma) was appointed by the governing body on the recommendation of the University Service Commission which found that Sharma had ten years teaching experience in a College. It, however, appears from the judgment that other provisions of the Statutes framed under that Act were not brought to the notice of the Bench; therefore, Article 6 of Chapter XV was not interpreted taking into consideration other relevant provisions.

15. Chapter XII of the Magadh University Statutes relates to admission and exclusion of colleges other than those managed and maintained by the University. Article 2 provides for making an application for admission in affiliated college of Magadh University. Article 3 provides the contents of such an application. In such an application, statement is required to be made, as provided in Article 3(d), that no student has been or shall be admitted to the institution or in the subject or subjects for the admission of which the application is being made unless the admission prayed for has been granted by the University. It will thus be seen that this provision is similar to the provision of the statutes framed under 1960 Act and kept in force under 1976 Act and which has already been noticed. If there is statutory bar in admitting student in a proposed college before affiliation is granted, the proposition that teaching experience in an unaffiliated college shall have to be taken into consideration is not correct.

16. In none of the statutes noticed above, it has been provided that experience as a lecturer shall have to be acquired in a college affiliated to that University if a lecturer applied for post of Principal in an affiliated College of that University. It merely speaks of College. As I have already held that if experience said to have been acquired as a lecturer in an unaffiliated college situate in the territorial jurisdiction of one or the other University is counted, we shall have to ignore the statutory provisions, I am, therefore, of the opinion that in view of all the reasons aforesaid, the law laid down in Ramawatar (supra) shall have to be confined to the facts of that cose.

17. It appears from the judgment of Shri Chandra Deo Jha (supra) that the judgment of Ramawatar (supra) was brought to the notice of the Bench. The Division Bench in Sri Chandra Deo Jha (supra) noticed the reasoning in Ramawatar (supra) that if a candidate for the post of Principal is required to have teaching experience in a college affiliated to the Magadh University, till 1973 no such candidate would be available who had acquired teaching experience in a college affiliated to the Magadh University because Magadh University was established in 1962 under Magadh University Act, 1961. The Division Bench in Sri Chandra Deo Jha (supra) held that in order to do away this unreasonable and impractical aspect of the matter, teaching experience in an unaffiliated college is also to be taken into consideration. It furthear appears from the judgment of Sri Chandra Deo Jha (supra) that the Bench held that since in the Magadh University Act, “college” means an institution admitted to or maintained by the University, in the subordinate legislation, that is the statutes framed by the Senate, unaffiliated college cannot be said to be college within the meaning of the Act. The Division Bench in Sri Chandra Deo Jha (supra) also did not notice any provision of the Magadh University Statutes. Whether the Division Bench in Sri Chandra Deo Jha (supra) should have referred the case to a larger Bench in view of the fact that they differed with the judgment of Ramawatar (supra) in not accepting the judgment of Ramawatar (supra) is not for us to Comment. The second part of the reasoning given in Sri Chandra Deo Jha (supra) in not accepting the judgment of Ramawatar (supra) with reference to subordinate legislation, in my opinion cannot be held to be correct in law. For all the reasons, it must be held that teaching experience in an unaffiliated college cannot be taken into consideration. This answers point No. (A).

18. I have quoted the minimum qualification required for considering a candidate for appointment of a Principal in a degree college. It will be noticed that besides other, the candidate must have atleast ten years teaching experience in a college of which atleast seven years must be in a degree college. I have already held that no judicial notice of the experience alleged to have been acquired by the petitioner as a teacher before the college was affiliated can be taken. Further, the college was affiliated upto degree standard on 3.10.1985 When the petitioner was appointed as Principal, surely she had not acquired at least seven years teaching in a degree college. With regard to the qualification of the Principal, as quoted above, it will further appear that even if a candidate has not ten years teaching experience, but if he has five years experience as a Principal of Intermediate College, he or she is eligible for being appointed as Principal in a degree college. The college was given affiliation upto Intermediate standard with effect from 1.6.1981 Court must ignore the alleged teaching that took place in the College before it was affiliated. Thus, there was no question of the petitioner working as Principal in Intermediate College for five years. Even if we proceed on the assumption that the petitioner was appointed as Principal of the College in 1983, the date of her alleged confirmation as a Principal, her experience then was of about one year as a Principal in Intermediate College.

19. It may be mentioned that section 4 of 1976 Act lays down the purpose and power of the University of which clause 19 empowers the university to affiliate or disaffiliate colleges according to statutes subject to prior approval of the State Government. In this sub-clause, a proviso was added in 1982 which provided that after the promulgation of Intermediate Education Council Ordinance, 1979, recognition to Intermediate Colleges shall be granted by the Intermediate Education Council. In view of this provision, the affiliation upto Intermediate Standard was given by the Bihar Intermediate Education Council, Annexure 7.

20. From annexure-7, it appears that affiliation was given to the college on a number of subjects, both in Arts and Science. Sanction, was given for creation of post of Principal and one lecturer in each subject. It was specifically stated in annexure 7 that for appointment to the posts, recommendation and/or concurrence of Bihar College Service Commission shall have to be obtained. It was also specifically stated in annexure 7 that no appointment shall be made for teaching upto degree standard. The college was required to inform within six months whether the conditions mentioned in annexure 7 had been complied.

21. By annexure 10 dated 19th August, 1986, the Vice Chancellors of different universities in the State of Bihar were informed that names of the affiliated colleges mentioned in schedule A to annexure 10 would be made constituent colleges of the respective Universities. It was stated that the concerned University shall, in terms of section 4(14) of 1976 Act, enter into an agreement with the Managing Committee, but before they entered, into an agreement, the Managing Committee of the concerned college must pass a resolution to the effect that the college must be made constituent college. It was emphasised that the details about the posts validly sanctioned and teachers and non-teachers validly appointed, their scale of pay be obtained from the respective colleges and be scrutinised and while scrutinising the provision of section 35 of 1976 Act shall be kept in view. Section 35 provides that no post for appointment shall be created without the prior sanction of the State Government. In schedule B to Annexure 10, the conditions decided by the State Government under which the Colleges have been made constituent colleges have been stated. In Schedule B clause (4) it was, inter alia, provided that decision, with regard to taking over of services of such teachers who are appointed by the Managing Committee against the posts, proposal for sanction of which has been sent by the University upto 30th, April, 1986 and was pending before the Education Department, will be taken after receipt of report of the committee to be constituted.

22. Learned counsel for the petitioner drew our attention to the latter part of clause (4) wherein it has been stated that till final decision in this regard was taken by the State Government, all teachers and non-teachers will continue to work and will receive the salary as they were getting and their appointment will be treated as ad hoc. It was submitted that in view of the fact that the petitioner was working as Principal, she could not have been disturbed till final decision in this regard was taken by the State Government.

23. In my opinion, unless the petitioner shows that she had the requisite teaching experience for being appointed as Principal and was appointed in accordance with law, clause (4) will be of no assistance to her.

24. It was submitted on behalf of the petitioner that even if the teaching experience acquired by her prior to 1.6.1981, i.e the date from which the college was affiliated upto Intermediate standard, be excluded, in view of the fact that on and from 1.6.1981 she has worked at least as lecturer in the college, her experience from that date including the period during which this writ petition remained pending shall have to be taken into consideration to count the years of teaching experience. It was submitted that if her experience is counted from 1.6 1981 upto June, 1991, she had more than ten years teaching experience. In support of this proposition, reliance was placed in H.C Puttaswamy v. Hon'ble Chief Justice of Karnataka High Court; 1991 Supp (2) SCC 421 : A.I.R 1991 S.C 295 : 1991 (2) PLJR 77 (SC); Ram Sarup v. State of Haryana; (1979) 1 SCC 168 : A.I.R 1978 S.C 1536 and State of Orissa v. N.N Swamy; (1977) 2 SCC 508 : A.I.R 1977 S.C 1237.

25. Learned Advocate General appearing on behalf of the University submitted that none of the decisions relied upon by the petitioner has application to this case because the petitioner was never appointed on the basis of the recommendation of the Commission or on its concurrence and having never been approved by the University, the petitioner was never validly appointed as Principal.

26. From the facts of the case in Puttaswamy (supra), it appears that a number of persons were appointed by the Chief Justice without the recommendation of the Public Service Commission and they were transferred to the district courts. Their appointments were challenged on the ground that Karnataka State Civil Services (Recruitment of Ministerial Posts) Rules, 1966, had been violated. The Supreme Court allowed them to continue mainly on humanitarian ground. In view of the fact that they had far better academic qualifications than the minimum qualification and they were in service for ten years, they were directed to be treated as regularly appointed with all benefits of past service. No law has been laid down by the Supreme Court which could be made applicable to the facts of this case.

27. From the facts of Ram Sarup (supra) it appears that the appellant while working as Statistical Officer was appointed as Chief Inspector of Shops. W hile he was so working, he was appointed as Labour-cum-Conciliation Officer. There was an executive decision that the post of Statistical Officer and Labour cum Conciliation officer were inter-changeable, but the rules framed under Article 309 of the Constitution ware not amended. The appellant was reverted to the post of Statistical Officer on the ground that he had not the requisite experience for holding the post of Labour-cum Conciliation officer. The Supreme Court held that the experience of the appellant as Labour cum Conciliation officer must be taken into consideration to see whether he had the requisite experience before the State Government could revert the appellant to the post of Statistical Officer. It appears that there was no question of appointing the Labour-cum-Conciliation officer after obtaining concurrence and/or approval of any Commission. The judgment, thorefore, is of no assistance to the petitioner for granting relief by declaring that she was entitled to continue as Principal.

28. From the judgment of N.N Swamy (supra) it appears that when the private college was taken over by the State Government, Swamy and others were working as Readers. They all had the requisite qualification and experience but those Readers who were drawing less than Rs. 600/- were not absorbed in Government employment. It was held by the Supreme Court that their experience as lecturer shall have to be counted irrespective of the salary they were getting. Here again there was no question of obtaining concurrence from the Commission.

29. I have already noticed that teaching experience for appointment of Principal in a degree college, a person shall have atleast ten years teaching experience out of which seven years shall be in a degree college or the candidate have worked as Principal of Intermediate College.

30. I will now consider whether the petitioner can claim that she is entitled to continue as Principal of a degree college. The college was affiliated upto Intermediate standard with effect from 1.6.1981 and upto degree standard on 3.10.1985 The petitioner had teaching experience of less than five years in Intermediate College. Even if it is assumed that she was working as Principal, she had not worked at least five years as Principal in an Intermediate College. The petitioner, therefore, cannot claim and did not, in fact, claim in this writ application that she should be appointed and declared to be Principal because she acted as Principal for five years in Intermediate College.

31. Again, even if we take into consideration the appointment of the petitioner as lecturer with effect from 1.6.1981 and her continuance as a lecturer upto 1991, the petitioner surely has not worked as a lecturer for at least seven years in a degree college. She cannot, therefore, claim that she is entitled to continue as Principal of a degree college. Thus, point No. (B) must also be decided against her.

32. For all the reasons aforesaid, no relief in the terms prayed for by the petitioner can be granted to her. The writ petition is dismissed.

B.N Agrawal, J.:— I agree.

N. Pandey, J.:— I agree.