A.K Ganguly, J.:— The challenge in this writ petition is against the order of appointment of respondent nos. 6 to 27 to the post of Principal in different constituent Colleges of B.R Ambedkar Bihar University issued by the Vice Chancellor of the said University on 16th January, 1996 (Annexure-1).

2. The petitioners, who are Professors and one of them is a Reader of different Colleges, challenge the said appointment on various grounds. But the main ground is that the said order of appointment was issued on the basis of the recommendation dated 15th January, 1991 of the illegally constituted Commission, namely, Bihar State Universities (Constituent Colleges) Service Commission (hereinafter called the said Commission). The constitution of the said Commission, it is claimed, was vitiated by the presence of two members who were found by a Division Bench of this Court to be disqualified and subsequently on appeal the said judgment was affirmed by the Supreme Court. Those proceedings, not filed by the present petitioners, were numbered as C.W.J.C Nos. 5854 of 1994 and 8221 of 1994. Both those writ petitions were analogously heard by a Division Bench of this Court and a judgment was rendered on 26th May, 1995.

3. The cardinal question which was debated before the Division Bench in that case was about the valid constitution of the Commission. The same question is at issue in this proceeding also. So the judgment of the Division Bench dated 26th May, 1995 has a bearing on the present proceeding.

4. Before dealing with the controversies in this case, certain admitted facts may be noted. The said Commission is constituted under the provisions of the Bihar State University (Constituent Colleges) Service Commission Act, 1987 (hereinafter called the said Act). It is established for the purpose of making recommendations for the recruitment of officers and teachers of the Universities and the Constituent Colleges in the State. It is common ground that the appointment of respondent nos. 6 to 27 has been made on the recommendations of the said Commission. The said Commission is to consist of a Chairman and a maximum of six members and they are to be appointed by the Governor.

5. Section 6 of the Act lays down the qualification of Members. Since much turns on the qualification of Members, the said section as amended by Act 5 of 1994, is set out below:

“6. Qualification of Chairman and Members:

(1) A person to be appointed as Chairman shall have a minimum of 5 years experience as a University Professor.

(2) Excluding the Chairman, half of the Members shall not be below the rank of University Professor and half of the members shall not be below the rank of Additional Secretary of the Government of India/State Government.”

6. After the aforesaid amendment was brought about, sometime on 15th March, 1994 the Commission was brough into existence immediately on 16th March 1994 consisting of five members. Out of those five Members, the Division Bench in the aforesaid judgment held that two members, namely, Dr. B.P Yadav and Sri Suresh Prasad Singh do not have the requisite qualifications for their appointment as Members of the Commission and consequently the Commission constituted by the impugned notification dated 16th March, 1994 was held illegal and invalid.

7. Against the said judgment no appeal was filed either by the State Government or by the Commission. On the other hand the State Government, acting in obedience to and in terms of the said judgment of the Division Bench and also in exercise of its statutory power under section 3 of the said Act, issued a notification dated 13th June, 1995 re-constituting the Commission with three persons and omitting therefrom the names of those two members whom the Division Bench of the High Court found disqualified in the aforesaid judgment. The notification so constituting the Commission took effect from 26th May, 1995, the day when the Division Bench judgment was delivered.

8. However, on the appeal being filed by those two disqualified Members of the said Commission before the Hon'ble Supreme Court, the learned Judges of the Apex Court concurred with the findings of the High Court and by a judgment dated 14th March, 1996 dismissed the appeal with costs by observing that disqualification of those two members was ‘patent’ and appointment of such members in the Commission raises ‘to say the least reasonable suspicion of un-due favour’.

9. One more admitted fact, on which considerable argument has been advanced, may be noted. In the aforesaid appeal filed to the Supreme Court by those disqualified Members, an order of stay was granted on 17th July, 1995 by the apex Court in the following terms:

“The operation of the judgment and order dated 26th May, 1995 of the High Court of Judicature at Patna in Civil Writ Jurisdiction Case Nos. 5854 and 8221 of 1994 be and is hereby stayed in the meanwhile”.

10. It is also not disputed that the appointment of Respondent Nos. 6 to 27 by the impugned order dated 16th January, 1996 (annexure - 1) was based on the recommendation of the Commission in which those two disqualified Members participated and not on the recommendation of the Commission which was constituted on 13th June, 1995 by the State Government pursuant to High Court's order and in exercise of its power under section 3 of the said Act.

11. The learned Senior Advocate Dr. Sadanand Jha appearing for the petitioner assailed the legality of the impugned appointment. Messrs Shreennath Singh and Shyama Prasad Mukherjee, senior Advocates and Mr. Shivakirti Singh, Advocate appeared for different sets of private respondents, Mr. S.A Narain, Additional Advocate General II appeared for the Commission and Mr. Prabhu Nath Roy, Senior Advocate appeared for the University and the State was represented by the standing Counsel No. VII.

12. The Court received very able assistance from all the learned Advocates appearing for different parties and especially from Mr. Shreenath Singh, learned Senior Advocate whose incisive and erudite address to the Court had a vintage flavour of both class and calibre, so rare these days.

13. Assailing the impugned appointment of respondent Nos. 6 to 27, learned counsel for the petitioner submitted that the matter stands concluded by the aforesaid Division Bench judgment of this Court dated 26th May, 1995 whereby not only the constitution of the said Commission by notification dated 16th March, 1994 was quashed but also the appointment of any one to the post of Principal by the Commission was declared ‘invalid and in-operative and void’. The learned counsel pointed that as it is admitted that the appointment of the respondent nos. 6 to 27 was made by the self same Commission with the participation of those two disqualified Members, such appointment is also bad and be quashed by issuing a writ of Certiorari. Though in the writ petition there is a prayer for issuance of a writ of Quo-warranto, the learned counsel didnot press that aspect of the matter in this case.

14. The other limb of submission of the learned counsel is that in any event the participation of those two disqualified persons, apart from being violative of the judgment of the Court referred to above, is not legally permissible in view of the fact that the Commission stood re-constituted by the statutory notification dated 13th June, 1995 issued by the Governor, therefore, a different Commission has come into existence and from that Commission those two disqualified Members have been omitted. Despite the coming into existence of re-constituted and a different Commission, the impugned appointments made on the recommendations of a Commission which is not in existence cannot be sustained.

15. Various contentions have been raised on behalf of respondent nos. 6 to 27 in support of their appointment. First of all it has been urged that to the aforesaid Division Bench proceeding the respondent nos. 6 to 27 were not parties. So they are not bound by that judgment and the judgment is not admissible in this proceeding. Similarly the Supreme Court judgment does not bind them and is not admissible. Then it was also urged that the Division Bench judgment is ‘per incuriam’ especially the observations made in the said judgment about the invalidity of appointments made by the Commission. It has also been contended that neither the Division Bench nor the Hon'ble Supreme Court considered the difference between ‘Professors’ and ‘University Professors’ as defined under the provisions of the Bihar State Universities Act, 1976 and the Courts erroneously came to the conclusion that those persons are disqualified in becoming Members of the Commission. It has also been urged that the petitioners have statutory remedy under Section 9(4) of the Bihar State Universities Act, 1976 and the writ petition, having been filed without exhausting the said remedy is not maintainable.

16. It was also argued that the action of the Commission in recommending the appointment of respondent nos. 6 to 27 is saved by the ‘De-facto doctrine’ and the stay order issued by the Supreme Court by which the operation of the High Court judgment was stayed. The appointments were made during the period when the stay order was operating.

17. It was also urged that the petitioners cannot make any submission relying on the constitution of the Commission by the notification dated 13th June, 1995 as that fact has not been disclosed in the writ petition. Alternatively it was also contended that in any event by reason of stay order granted by the Supreme Court on 17th July, 1995, the notification dated 13th June, 1995 cannot be given effect to.

18. Learned counsel appearing for the Commission, however, did not urge all those points but defended the actions of the Commission primarily on the ‘Defacto doctrine’ and on the issuance of stay order by the Supreme Court. The learned counsel further submitted that a petition for vacating the stay order granted by the Supreme Court was filed by the respondents before the Supreme Court and in which it was alleged that the Commission has made the impugned appointment. The fact that the Supreme Court in its final judgment, did not pass any order on that vacating application nor did it quash the appointments shows that the Supreme Court approved the impugned appointments.

19. Learned counsel appearing for the State and the University adopted the aforesaid submission advanced by the other counsel on behalf of the respondents.

20. In reply, Dr. Jha, learned counsel for the petitioners submitted that the vacating application is not numbered and he seriously disputed that it was never listed before the Supreme Court Bench which heard the matter. This Court then called upon him to produce the relevant records, if any, to show that the said vacating petition was not placed before the Supreme Court. Pursuant to that direction and leave granted by this Court on 14th August, 1996, Dr. Jha, though belatedly, filed an affidavit of one M.K.D Prasad, Advocate for respondent in the Supreme Court in that Special Leave Petition (S.L.P (c) No. 13722-13723 of 1975). Along with the said affidavit and some other connected records after serving the same on the contesting respondents were filed.

21. This Court will now consider the rival contentions urged by the parties. First of all the Court considers the applicability of De-facto doctrine in the facts of this case.

22. The history of ‘De-facto’ doctrine has been traced by Professor Wade in his treatise on ‘Administrative Law’. It is said to be of ancient origin being applied to even monarchy in the sense that it used to validate acts done in the name of Kings whose title to the throne was considered ‘illegitimate’ and who were kings in fact but not in law.

23. Previously Offices, as Professor Wade points out, were “considered to be a form of property” and ‘wrongful possession of an office was compared with ‘wrongful possession of land’. And as a ‘wrongful occupier of land may validly exercise, some of the owner's power, namely, the right to sue for trespass, right to convey against every body except the true owner, so a wrongful occupier of office may validly exercise his power against Members of public on the strength of the ‘De facto’ office (Wade, Administrative Law, 6th Edition page 337-338).

24. The law of ‘De facto doctrine’ with reference to past precedents both in India and abroad has been noted in the decision of the Supreme Court in the case of Gokaraju Rangaraju v. State of Andhra Pradesh reported in A.I.R 1981 S.C page 1473. In the said judgment the Hon'ble Mr. Justice O. Chinnappa Reddy (as His Lordships then was) noticed the law laid down on the subject. The previous judgment delivered by His Lordship in Immedisetti Ramkrishnaiah Sons v. State of Andhra Pradesh reported in A.I.R 1976 A.P page 193 was approved and His Lordship also approved the Full Bench judgment of Kerala High Court in the case of P.S Menon v. State of Kerala reported in A.I.R 1970 Kerala page 165 (F.B). Thus on a consideration of various authorities, the law on the point has been summed up as follows in paragraph 15, Page 1978 of the report:

“A Judge, de facfo, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy.”

25. While noting the law in the aforesaid terms, the Supreme Court also in paragraph 17 of Gokaraju (supra) noted that so long the office is validly created, it does not matter how the incumbent was appointed. In that particular case the Supreme Court was dealing with the question of valid appointment of Judges and as such in paragraph 17 of the said decision, it was observed “it would be a different matter if the constitution of the Court itself is under challenge”. Reliance was also placed by the learned counsel appearing for the respondents on a few subsequent decision where the Supreme Court judgment in the case of Gokaraju (supra) was followed. For example the decision of the Supreme Court in the case of Beopar Sahayak Limited v. Vishwanath reported in A.I.R 1987 S.C page 2111 which followed Gokaraju (supra) was cited and also the judgment of the Supreme Court in the case of State of U.P v. Sunil Kumar Shrivastava reported in A.I.R 1988 S.C page 162 in which in paragraph 20 reliance was placed on the judgment in Gokaraju (supra). Another judgment of the. Supreme Court in the case of Pushpa Devi M. Jattia v. M.L Wadhavan reported in A.I.R 1987 S.C page 1748 was cited in which in paragraph 18 reliance was placed on Gokaraju (supra) in explaining the De facto doctrine as “doctrine of necessity and the public policy to prevent needless confusion and endless mischief”.

26. The principles relating to de facto doctrine has been stated very clearly in a subsequent three Judge Bench of the Supreme Court in the case of Central Bank Of India v. C. Bernard. reported in (1991) 1 S.C.C page 319. The question there was “whether the departmental enquiry entrusted to and conducted by a Bank Official stands vitiated if the said official proceeds with the enquiry and concludes the same after his superannuation during the pendency of the enquiry”. While explaining the de facto doctrine in Central Bank of India (supra), Hon'ble Mr. Justice Ahmadi (as His Lordship then was), also noticed the law laid down in the case of Gokaraju (supra) and came to the following conclusion at paragraph 5 page 325 of the report:

“that the de facto doctrine has two requisites, namely, (i) the possession of the office and the performance of the duties attached thereto and (ii) Colour of title i.e apparent right to the office and acquiscence and in the possession thereof by the public.”

27. In paragraph 6 at page 326 of the report it has been further clarified:

“but the doctrine does not come to the rescue of an intruder or usurper or a total stranger to the office. Obviously the doctrine can have no application to the case of a person who is not the holder of an office but is merely a bank employee, for that mater an ex-employee”.

(underlined for emphasis).

28. It is clear from the aforesaid enunciation of the doctrine by the Supreme Court that once the person concerned retired and ceased to hold the office, the de facto doctrine can have no application.

29. Here also I find that the said de facto doctrine cannot be pressed into service in view of the subsequent statutory notification dated 13th June, 1995 issued by the Governor in exercise of power under section 3 of the said Act. The official English version of the said notification is set out below:

Government of Bihar, Department of Higher Education, Patna, Dated 13th June, 1995.

Notification.

No. 15/23-30/95-167

Exercising the powers conferred under section 3 of the Bihar State University (Constituent College) Service Commission Act, 1987 as amended up-todate, in the light of the orders passed by Hon'ble High Court in C.W.J.C No. 5854 of 1994 in the matter of Dr. Ratneshwar Prasad Singh v. The State Government and C.W.J.C No. 8221 of 1994 in the matter Dr. Meera Dasgupta v. The State Government, H.E the Governor appoints the following as the Chairman and the Members of the Bihar State University (Constituent Colleges) Service Commission with effect from 26-5-95.

1. Prof Syed Abdul Wahab Ashrafi M.A (Urdu), M.A (Persian), M.A (English), B.L, Ph.D University Professor and Head of the Department, Urdu, Ranchi University, Ranchi. Chairman.

2. Prof. L.N Sahu, Head of the Department, Electrical Engineering, R.I.T Jamshedpur. Member.

3. Sri Satya Narayan Prasad, University Professor of Physics, Bhagalpur College of Engineering, Bhagalpur. Member.

(2) The Chirman and the Members are appointed for six years or upto attainment of 62 years of age, whichever is earlier, with effect from 26-5-1995.

By the order of the Governor Sd/- K.C Saha

13-6-95

Secretary to the Governor”

30. From a persual of the said notification it is clear that in law, those two persons, namely, Dr. B.P Yadav and Sri Suresh Prasad Singh ceased to hold the office of the Members of the Commission from the date of publication of the aforesaid notification which is 13th June, 1995. The said notification has been given a retrospective effect also, namely, from 26th May, 1995. The said notification has not been challenged either by them or by any one else. Even though in the said notification there is reference to the aforesaid Division Bench judgments of this High Court, the said notification has been passed by the Governor in exercise of statutory power under section 3 of the said Act. It cannot be disputed that the claim of those two persons, namely, Dr. B.P Yadav and Sri Suresh Prasad Singh to the office of the Members of the said Commission can be derived only from a statutory notification issued by the Governor. In the absence of any statutory notification issued by the Governor, those two persons cannot claim any title to the office of the Members of the said Commission. Therefore, from 26th May, 1995 those two persons are in the language of Supreme Court judgment in Central Bank's case (supra) ‘intruder or usurper or total stranger to the office’ in view of (i) A Division bench judgment of this High Court which held that they are disqualified to become members and (ii) statutory notification issued by the Governor in obedience to the judgment excluding those two disqualified persons from the Commission. In law this is clearly the upshot and consequence of the said notification. Learned counsel for the petitioners was, therefore, right in contending that in view of the said notification, those two persons cannot, on the strength of de facto doctrine, participate in the deliberations of the Commission for recommending the selection of respondent nos. 6 to 27. But admittedly those persons, despite the said notification, did participate.

31. It may be true that the said-notification has not been disclosed in the writ petition but since the said notification has been disclosed by the said Commission in its counter affidavit and a copy of the said notification has been annexed and filed in this proceeding and has formed part of the record of this writ proceeding, this Court cannot shut its eyes to the said notification nor can it refuse to consider its legal implications. In the counter affidavit affirmed by E.J Soren, who was Secretary of the said Commission, it has been stated in paragraph 23 that the said Commission was “re-constituted” pursuant to the judgment of this Court in C.W.J.C No. 5884 of 1994 and C.W.J.C No. 8221 of 1994.

32. In the counter affidavit filed by respondent no. 13 also reference was made to the said notification and in paragraph 22 of the said counter affidavit it has been stated ‘this Hon'ble Court allowed the aforesaid writ application on 26-05-1995 and in view of the decision of this Court in the aforesaid writ petition the Commission was “re-constituted” on 13-6-1995 excluding Dr. B.P Yadav and Suresh Prasad Singh’.

33. In the counter affidavit used by respondent No. 14 in this proceeding, the same stand was taken in paragraph 22 wherein it has been stated that the commission was “re-constituted”s on 13th June, 1995 excluding Dr. B.P Yadav and Sri Suresh Prasad Singh.

34. Therefore, all the parties have accepted the position that the Commission of which Dr. B.P Yadav and Sri Suresh Prasad Singh were Members stood re-constituted by the notification dated 13th June, 1995 excluding Dr. B.P Yadav and Sri Suresh Prasad Singh. In view of the aforesaid admitted position this Court cannot appreciate the objection of the learned counsel for the respondents that the petitioners cannot rely on this fact which had come on the record at the instance of the respondents. This objection has no merit.

35. It is on consideration of this fact, as pointed out before, that this Court comes to the conclusion that the ‘de facto doctrine’ cannot be pressed into service to validate the functioning of both Dr. B.P Yadav and Sri Suresh Prasad Singh as Members of the said Commission in view of the aforesaid statutory notification omitting them as Members of the said Commission.

36. The other aspect of the submission which has been advanced on behalf of the private respondents as also the Commission is that those two persons, who were omitted from the Commission by the statutory notification, can participate in the deliberations of the Commission in view of the ad-interim stay order granted by the Hon'ble Supreme Court.

37. It is not in dispute that in the instant case the stay order which has been set out before was granted much after the statutory notification. The statutory notification has been issued on 13th June 1995 with retrospective effect from 26th May, 1995 and the ad-interim order of the Hon'ble Supreme Court was granted on the 17th July, 1995 by which the operation of the High Court judgment was stayed.

38. Therefore, much before the ad-interim stay order was granted by the Hon'ble Supreme Court, the aforesaid notification has come into effect. So ad-interim stay granted by the Hon'ble Supreme Court cannot, as it were, put the hands of the clock back. In other words, the action which has already been taken by the competent authority in exercise of its statutory power and in obedience to a judgment of a Court of competent jurisdiction cannot be reversed by an ad-interim order unless the ad-interim order granted by the appellate court makes it clear and specific in the terms of the order. In the instant case the ad-interim stay order which was granted was not in mandatory terms at all. The same was merely in prohibitory terms and the said took effect only from the date of its communication. Assuming that in the instant case the stay order was communicated immediately when it was granted i.e on 17th July, 1995 even then it cannot stay the operation of the notification which has been issued much prior thereto. In this connection about the effect of a stay order reliance on several judgments have been placed by the learned counsel for the respondents. Those judgments are considered by this Court and seriatim. Reliance was placed on the judgment in Mulnaj v. Murthy Raghunath Maharaj reported in A.I.R 1967 S.C page 1386 and on paragraph 8 of the said judgment. In the said paragraph it has been stated that a stay order will normally prohibit the Court from proceeding with execution further and the Court, unless it knows of the order, cannot be expected to carry it out. Therefore, till the order comes to the knowledge of Court, its jurisdiction to carry on execution is not affected by the stay order which must, in the very nature of thing, be treated to be a prohibitory order directing the executing Court, which continues to have jurisdiction to stay its hand till further order. It has further been clarified in the following words:

“The only effect of the stay order is to prohibit the executing court from proceeding further and that can only take effect when the executing court has knowledge of the order.”

39. The view which I have taken in this case is thus strengthened by the decision in ??? (supra). The effect of the stay order in this case (i) only starts operating from the time of its communication and (ii) It is in the nature of prohibitory order and (iii) It can only stop further execution of the Judgment which it stays.

40. Going by the aforesaid principle, this Court is clearly of the opinion that when the Commission has been reconstituted by a statutory notification dated 13th June, 1995, the operation of the said notification cannot be either stayed or put in abeyance by the ad-interim stay order which has been granted much later.

41. Reliance in this connection was also placed by the learned counsel for the respondents on the decision of the Supreme Court in the case of Cotton Corporation of India Limited v. United Industrial Bank Limited reported in A.I.R 1983 S.C Page 1272. This Court fails to appreciate the ratio of the judgment in Cotton Corporation (supra) in the facts of this case. In the said case of Cotton Corporation (Supra) the Hon'ble Judge of Supreme Court was considering the right of the Court to grant injunction under sections 39 and 151 of the Code of Civil Procedure read with Section 41(b) of the Specific Relief Act and came to the following conclusion:

“Ordinarily a preventive relief by way of prohibitory injunction cannot be granted by a court with a view to restraining any person from instituting or prosecuting any proceeding and this is subject to one exception enacted in larger public interest, namely, superior court can injunct a person from instituting or prosecuting an action in a subordinate court with a view to regulating the proceeding before the subordinate court with a view to regulating the proceeding before the subordinate court. At any rate the court is precluded by a statutory provision i.e Section 41(b) from granting an injunction restraining a person from instituting of prosecuting a proceeding in a court of co-ordinate jurisdiction or superior jurisdiction.”

42. Here this Court is not concerned with the aforesaid question. Therefore, the said decision has no application to the facts and circumstances of the case.

43. Similarly reliance placed on the judgment of the Supreme Court in the case of Mohan Kumar Singhania v. Union of India reported in (1992) Supp. 1 S.C.C page 594 is of no assistance to the respondents. Reliance was placed on paragraphs 140 and 141 of the said judgment. In those concluding paragraphs the Hon'ble Supreme Court clarified the effect of the earlier directions given in the order dated 7th December, 1990. Those directions were given by the Supreme Court pursuant to various interim order passed by the Central Administrative Tribunal in Principal Bench, New Delhi and in those concluding paragraphs the Supreme Court clarified the effect of the said interim order in the facts of that particular case. In this case in the final judgment of the Supreme Court it has not at all adverted to its ad-interim order. But on the other hand the Supreme Court has categorically denounced the way in which those two disqualified persons were made Members of the said Commission.

44. Similarly this Court also finds that the decision of the Supreme Court in the case of Ravi S. Naik v. Union of India reported in (1994) Supp. 2 S.C.C page 641 is not even remotely relevant to the facts of this case. In that case the questions before the Supreme Court were whether the order of the Speaker could be the subject matter of a Court proceeding and whether his decision was final involving interpretation of the provisions contained in the 10th Schedule of the Constitution. In the context of those queries the Supreme Court found that on the date of passing of the stay order dated 14th December, 1990 by the High Court those questions were pending consideration before the Supreme Court. As such the Speaker cannot ignore the stay order granted by the High Court by taking a view that his order could not be the subject matter of a Court proceeding and his decision was final. In the said context the Supreme Court observed that it is settled law that an order even though interim in nature is binding till it is set aside by the competent Court as it cannot be ignored on the ground that the Court which passed the order had no jurisdiction to pass the same. Here the fact situation is totally different. On the date when the aforesaid notification dated 13th June, 1995 was passed re-constituting the Commission and thereby omitting those two disqualified persons from the Membership of the said Commission, there was no stay order by the Supreme Court. Therefore, the said notification continued as valid and operative and even the stay order of the Supreme Court dated 17th July, 1995 did not even refer to the notification at all far less to stay it.

45. So in the absence of any challenge to the said statutory notification, the same operates ‘proprio vigore’ and on its force. Therefore, the Court cannot accept the contention that by reason of the subsequent stay order dated 17th July, 1995 the valid statutory notification dated 13th June, 1995, has been stayed.

46. Reliance was also placed on another judgment of the Supreme Court in the case of Gursharan Singh v. New Delhi Municipal Committee reported in (1996) 2 S.C.C page 459. The same has also no application to the facts of this case. Equally misplaced is the reliance on the decision of the Supreme Court in the case of Prabodh Kumar Verma v. State of U.P reported in (1984) 4 S.C.C page 251. Reliance was placed on paragraph 48 of the judgment in Prabodh Verma (supra) in which the following observations have been made:

“Where a court has passed an interim order which has resulted in an injustice, it is bound at the time of the passing of the final order, if it takes a different view at that time, to undo that injustice as far as it lies within its power. Similarly, where an injustice has been done by the final order of a court, the superior court, if it takes a different view, must, as far as lies within its power, seek to undo that injustice.”

47. The Court is at a loss to find any application of the aforesaid observations to the facts of the present case. Here the Hon'ble Supreme Court has virtually affirmed the findings of the Division Bench of the High Court.

48. The argument advanced by the learned counsel for the private respondents that as a result of the stay order of the Supreme Court granted on 17th July, 1995 the status quo ante will revive is really an argument of desperation and is wholly contrary to the facts of the case.

49. When by an interim order the Court wants the status quo ante to revive the Court must clearly and expressly state it to be so in the order in a mandatory form. Here the ad-interim stay order granted by the Supreme Court is of a prohibitory nature and is not in mandatory form at all.

50. The principles for grant of a mandatory stay/injunction order have been considered by various authorities and some of them may be noted here. An interim order of either stay/injunction in a mandatory form almost amounts to restoration. In Pomeroy's Treatise on Equity Jurisprudence, 5th Edition. Volume IV about mandatory injunctions it has observed at Article 1359 that it ‘resembles in its effect the restorative interdict of the Roman Law’. Similarly in Halsburys Laws of England, 4th Edition, it has been stated that where the injury done to the plaintiff is so serious and material that ‘restoration of things to their former condition is the only method whereby justice can be adequately done’ that the court will ‘exercise its jurisdiction and grant mandatory injunction’ (Volume 24 Article 847). In Shell's ‘Equity’ (29th Edition) it is pointed out that the Court has jurisdiction to grant a mandatory injunction on an interlocutory application ‘but will very seldom do so’. Before granting mandatory injunction “the Court usually requires a high degree of assurance that at the trial it will appear that injunction was rightly granted’. (page 669)

51. It may also be granted if ‘the defendant wants to steal a march on the plaintiff's, as held by Lord Bridge in the famous Esso Petroleum Case reported in (1973) 3 All England Reports page 1057 at 1069. Justice Megarry in Shepherd Holmes Limited v. Saudham reported in 1971 Chancery Division page 340 followed the same principles in matters of granting mandatory injunction.

“Third, on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high decree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.”

52. Those principles were approved by the Court of Appeal in the judgment of Lord Justice Mustill in the decision of Locabail International Finance Limited v. Agro Export reported in (1986) 1 Weekly Law Reports, page 657 at page 664. The same principles are followed by the Courts in India.

53. Going by those principles, this Court is unable to agree with the learned counsel for the respondents that by the issue of an ad-interim stay order of a prohibitory nature, Supreme Court restored status quo ante i.e status quo anterior to the High Court's judgment dated 26th May, 1995. On the other hand, the Supreme Court in its final judgment affirms the High Court judgment and the ad-interim order thus was dissolved.

54. A submission has been specifically made by the learned counsel for the Commission that in the petition for vacating the stay order filed in the Supreme Court the order of appointment of respondent nos. 6 to 27 was annexed and the attention of the Supreme Court was drawn to the fact that such appointments have been made, even then the Supreme Court did not say anything about the legality of the appointment in its final order. From this, it was sought to be contended that the matter is concluded by the final judgment of the Supreme Court by which Supreme Court impliedly approved those appointments. So the legality of those appointments cannot be questioned now. As this Court has already recorded that in this matter, pursuant to the leave granted, an affidavit of the Counsel in the Supreme Court in the said S.L.R, was filed with copies to the parties and some materials along with an affidavit were also filed. From a perusal of the said affidavit and the material disclosed therein it appears that the said vacating petition was neither numbered nor the same was listed on 13th February, 1996 when the matter was placed for hearing before their Lordships of the Supreme Court. This also appears from the list of the Supreme Court dated 13th February, 1996 which has been annexed to the said affidavit. Various orders of the Supreme Court including the order dated 17th July, 1995 granting the ad-interim stay order was also annexed to the said affidavit. ‘From a perusal of the aforesaid materials this Court is satisfied that the vacating petition was not listed before the Supreme Court when the matter was finally heard. It is also clear from the final order passed by the Supreme Court in which there is no reference of the aforesaid vacating petition.

55. A great deal of submission was made by the learned counsel for the private respondents that the aforesaid judgment of the Division Bench of this Court is ‘per incuriam’ and the judgment is not exactly a judgment of the Division Bench. It has been urged before this Court that the observation made in paragraph 24 of the Division Bench judgment whereby the Division Bench quashed the selection of the Principal by the Commission is wholly without consideration of any argument, without due deliberation and without discussion and as such those findings are ‘per incuriam’. It has also been stated that those findings have been made without considering the import of ‘de facto doctrine’ and, therefore, those findings are wholly inappropriate and is not binding on this Court. Submission has also been made with reference to the observation made by Aftab Alam, J., and it was argued that from the observation made by Aftab Alam, J. it is clear that His Lordship did not concur with the findings relating to invalidity of appointment of Principal made by the Commission. Therefore, the judgment, in so far as it seeks to set aside the appointment of the Principal by the Commission, should not be taken to be the judgment of the Division Bench. With great respect, this Court is unable to appreciate the aforesaid submission.

56. The observation of Aftab Alam, J., is an observation concurring with all the findings arrived at by the other Member of the Division Bench, namely, S.K Homchaudhuri, J., (as His Lordship then was), except on the question of reservation. The observation of Aftab Alam, J., is quoted below:

“Without going into the question of reservation, I agree that the constitution of the Commission was illegal and invalid and on that ground alone these applications are fit to succeed.”

57. It is clear from the said observation that there is no whisper of dissent in it, on the other hand Aftab Alam, J., concurred with the conclusion of his Brother Judge for allowing the writ application and one of the issues before the Division Bench in those two writ petitions was whether the selection by the said Commission on the post of Principal are illegal and void. In this connection this Court sets out the relevant issue which was formulated by the Division Bench in the opening paragraph of the said judgment:

“Whether constitution of the present Bihar University (Constituent Colleges) Service Commission by the notification dated 14-3-1994 is invalid and if so whether the selections by the said Commission for the post of Principal are illegal and void?”

58. So when this Court finds that Aftab Alam, J., concurred with the findings of his Brother Judge and came to the conclusion that the writ petition should succeed, he must have approved the findings given by the other learned Judge, namely, that the selections of the Principal by the Commission are invalid, in-operative and void as that was one of the major issues in the writ petition. In this connection this Court also finds that when the matter went before the Supreme Court, the Supreme Court also considered the judgment passed by the Division Bench of this Court as one of concurrence and made the following observation:

“The other member of the Bench without going into the question of reservation, concurred with the finding that the constitution of the College Service Commission was illegal and invalid and on that ground alone the writ petitions will succeed”.

59. Therefore, the Supreme Court also read the judgment of the Division Bench as one of concurrence. Since the said judgment has been affirmed by Supreme Court, it is no longer open to the learned counsel to argue that the said judgment was delivered ‘per incuriam’. In this connection refinance was placed by the learned counsel for the petitioners on some judgments of the Supreme Court to show that when the findings in a judgment are challenged before the Supreme Court and the Supreme Court, on contested hearing, upholds the judgment of the High Court the said judgment becomes final. Reliance was placed on the judgment of the Supreme Court in the case of State of Haryana v. Birkharam reported in A.I.R 1985 S.C page 1681 (paragraph 3). Reliance on this point was also placed on the case of Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited reported in A.I.R 1979 S.C page 75. In paragraph 5 of the said judgment it has been observed that once leave against relief of the reinstatement was rejected, the order of the Labour Court has become final, and under no pretext or guise it could now be re-opened. Therefore, the findings given by the Division Bench having been approved expressly by the Supreme Court by the dismissal of the appeal with costs, this Court is unable to consider the argument relating to the judgment of the Division Bench being delivered ‘per incuriam’ even though a very interesting argument on this aspect was made out.

60. The next submission of the learned counsel for the private respondents is that as the private respondents were not parties to the previous proceeding, they are not bound by the Division Bench judgment and the said judgment does not bind them and is not admissible in this proceeding. This Court is of the view that the petitioners may not be bound by the said judgment but on the admissibility of the said judgment to this proceeding, this Court cannot accept the argument made by the learned counsel for the private respondents. Learned counsel placed reliance on Sections 41, 42 and 43 of the Evidence Act in support of his submission, that such a judgment is not admissible. In support of the said submission learned counsel for the private respondents placed reliance on three decisions of the Privy Council. They are (i) Kumar Gopikaraman Rai v. Atal Singh and others reported in A.I.R 1929 Privy Council page 99. (ii) Gobind Nareyan Singh v. Shyamlal Singh reported in A.I.R 1931 Privy Council, page 89 and (iii) Maharaja Sri Kesho Prasad Singh Bahadur v. Bahuria Mt. Bhagjogna Kuer reported in 1937 Privy Council page 69.

61. While accepting the principles laid down by the Privy Council in those judgments, this Court holds that they are not attracted to the facts of the present case for the reasons indicated below.

62. It is well known that the provision of the Evidence Act with all its intricacies and niceties are not relevant for the purpose of deciding controversy in a writ petition. Of course the broad principles of Evidence Act are attracted to a writ petition, but the Evidence Act with all its subtleties and nuances are not to govern the adjudication of a writ petition. The remedy of a writ petition, has been aptly described as a ‘remedy in public law’ by the Apex Court in the case of Md. Hanif v. The State of Assam reported in (1970) 2 S.C.R page 197. In the instant case the question involved is certainly one belonging to the domain of public law. The valid constitution of a University Service Commission under a statute by the Governor of the State and its recommendation in selecting persons to the post of Principal of constituent Colleges of a University financed by the State Exchequer are all questions which have the elements of public law writ large over them. So the judgment dealing with such questions is certainly a judgment which relate to ‘matters of a public nature’. Such a judgment is ‘relevant’ even in terms of Section 42 of the Evidence Act. And the said judgment having attained ‘finality’, as noted already its findings cannot now be questioned before this Court.

63. Section 41 of the Evidence Act makes it clear that certain judgments which confer upon or take away from any person any legal character or which declare any person to be entitled to any character is relevant when such a question is in issue.

64. Here the aforesaid judgment of the Division Bench being affirmed by the apex Court merely declares the status of the two disqualified persons to become Members of the Commission. By the expression ‘legal character’ what is meant is status. It is something more than mere right. The judgment does not declare any one's right to any one's private property nor does it decide the private dispute between the two individuals. The declaration given in the aforesaid Division Bench judgment is a declaration of status in public law. A person's right operates against some person or a group of persons but the declaration of status of a person operates against the whole world.

65. Judged in that context, the aforesaid Division Bench judgment is a judgment ‘in rem’. Section 41 of the Evidence Act does not exhaustively indicate what are judgments in rem but it certainly lays down the principles of what can be called a judgment in rem. It can be safely held that by ‘judgments in rem’ are meant ‘judgments determinative of the legal status of a person or thing as distinct from the particular interest in it of the party to the litigation’ (See Adrian Keane; The Modern Law of Evidence, 2nd Edition, Butterworths, page 428).

66. Here the Membership of the said Commission was certainly a matter of status for those disqualified Members. In that view of the matter this Court holds that Section 43 of the Evidence Act does not apply as the Division Bench judgment is covered by exceptions indicated in Section 41 and 42 of the Evidence Act.

67. For those reasons the ratio of the judgments of the Privy Council, referred to above, which relate to absolutely private disputes between parties on mere questions of personal property have no application here.

68. The statutory remedy under Section 9(4) of the Bihar State Universities Act, 1976 is, neither effective nor appropriate in this case. For a proper adjudication of the controversies involved here, the aforesaid Division Bench Judgment, the Supreme Court judgment and also the ad-interim stay order granted by the apex Court has to be interpreted and for doing that the remedy under Section 9(4) of the Act is not an efficacious one. Apart from that, this writ petition was admitted for hearing on merits. Therefore, the objection on the maintainability of the writ petition for non-exhaustion of the statutory remedy is not maintainable.

69. For the reasons aforesaid this Court holds that the appointments of respondent nos. 6 to 27 are based on the recommendation of a Commission constituted on 16-3-1994 and the said Commission does not exist in the eye of law after its re-constitution on 13th June, 1995. As such the said appointments based on the recommendations of a legally non-existent Commission are bad in law. This Court is definitely of the view that the so called Commission consisting of five persons including those two disqualified persons constituted on 16-3-1994 cannot exist in the eye of law after the re-constitution of the Commission by the notification dated 13th June, 1995 and the validly re-constituted Commission admittedly had not made any recommendation for the impugned appointments. The said notification dated 13th June, 1995 not having been challenged anywhere operates on its own force.

70. It has been said by the Supreme Court that nothing is more subversive of rule of law than a situation where the Court directs the parties to ignore the mandate of law. Similar is the prayer of the respondents here. They are asking the Court to uphold the selections made by the Commission which does not exist in the eye of law in view of the statutory notification dated 13th June, 1995. Therefore, the Court is asked to ignore the said statutory notification and uphold the deliberations of a Commission which has no semblance of authority to function in the eye of law.

71. The precise position is that a Commission which has ceased to exist in law has functioned and a Commission which has been re-constituted in accordance with statute and in obedience to a judgment of the High Court has not been allowed to function. In the background of these admitted facts this Court cannot uphold the order of appointment at Annexure-1. It is no body's case that the impugned appointment can subsist without the recommendations. As the recommendations are wholly illegal, the appointments being based on such invalid recommendations are also illegal and ultra vires the provisions of the Act.

72. Before parting with the records of the case, the Court may note that the jurisdiction of this Court under Article 226 is primarily a jurisdiction of conscience and when a particular scheme of things, apart from being illegal, disturbs the conscience of the Court, this Court cannot uphold the same. The conscience of the Court dictates that in matters of appointment to the educational, institutions like the post of Principal of Colleges purity in the selection process must be maintained and not vitiated by participation of persons who are found ‘patently’ disqualified by the apex court. But in the facts of this case this Court finds that just this has happened. Disregarding the Division Bench judgment and also of the apex Court and the statutory notification those two disqualified persons have been allowed to participate in the selection process for appointment to the post of Principals of the College, so there is very little option left with the Court save and except quashing the appointments.

73. The impugned order at Annexure-1 is, therefore, quashed forthwith. This writ petition is thus allowed to the extent indicated above. There will be no order as to cost.