Judgment

PALEKAR, J. :- These appeals by special leave have been filed by Dr. Saran from the order of the Patna High Court dated 3-1-1967 dismissing two Writ Petitions filed by him, being C. W. J. C. 984 and 1235 of 1965. The petitions deal with the same subject matter. The first one was filed by Dr. Saran and others but the other petitioners withdrew and thereupon Dr. Saran filed the second Writ Petition in order to avoid a possible technical defect. The two petitions were heard together and disposed of by a common judgment by the High Court Dr. Saran complained that respondent No. 5 Dr. Mahendra Pratap Sinha and respondent No. 6 Hari Narain Verma, who were both junior to him in service and also without teaching qualifications had been illegally appointed lecturers in Surgery at Rajendra Medical College, Ranchi in disregard of his own claim to the post. He, therefore, prayed for the issue of a mandamus for setting aside these appointments.

2. Dr. Saran had been appointed a Civil Assistant Surgeon in Bihar State Medical Service in 1954. He was confirmed in that post in 1957 and was appointed a Tutor in Surgery at Rajendra Medical College, Ranchi on 17-7-1962. He held that post till he filed the petitions.

3. Respondent No. 5 was appointed as a Civil Assistant Surgeon in the Bihar State Medical Service in 1956 and was confirmed in that post in 1961. He worked as a Casualty Officer in the Darbhanga Medical College Hospital from 23-9-1959 to 5-8-1963 and thereafter on 23-9-1963 he joined the Patna Medical College Hospital as the Assistant Surgical Officer which post he held till he was appointed lecturer in Surgery at Rajendra Medical College, Ranchi on 19-8-1965.

4. Respondent No. 6 was initially appointed to a Gazetted post as Anti Malaria Officer on April 16, 1953 and was subsequently absorbed in the cadre of the State Medical Service with effect from May 1, 1957. On a representation made by him regarding his previous service an order was passed by the Government on April 19, 1963 (Annexure VI) declaring that he will be treated as the junior most temporary direct recruit of 1953 in the cadre of the State Medical Service for the purpose of determining his seniority. By this order, therefore, he was to be regarded as appointed in 1953 and accordingly, he was senior both to Dr. Saran who was appointed in 1954 and Dr. Sinha who was appointed in 1956. It appears that by some mistake he was shown as confirmed in the post on 10-2-1962 but on his representation based on the Order of the Government dated July 19, 1963 referred to above he was later in 1967 confirmed with effect from a date prior to that of Dr. Saran. From 30-12-1959 to 2-7-1963 and again from 4-11-1963 to 9-1-1964 he held a supernumerary post of Civil Assistant Surgeon, at the Patna Medical College Hospital and from 9-1-1964 he was appointed ad hoc Surgical Registrar which post he held till he was appointed lecturer in the Rajendra Medical College Ranchi on 19-8-1965 along with respondent No. 5 Dr. Sinha.

5. It will thus be seen that Dr. Saran the appellant, and Dr. Sinha and Dr. Verma, respondents 5 and 6, belonged to the same service at the time when respondents 5 and 6 were deputed as lecturers in Surgery to the Rajendra Medical College on 19-8-1965. Dr. Saran was already in that College working as a Tutor from 16-7-1962. His chief contention was that not only was he senior in service but had also the necessary qualification of teaching experience of three years which the other two did not have and, hence, their appointment to the higher post of lecturer in disregard of his own claim was illegal and unconstitutional.

6. It must be mentioned at this stage that shortly before these appointments were made there had been a reorganisation of the Medical Service. The State Government had two separate cadres known as the Medical cadre and the Public Health cadre in Bihar. Both these cadres were merged into one cadre known as the Health Service by Government Resolution dated July