Judgment

SEN, J. - This appeal by special leave is against the judgement and order of the Patna High Court dated 16th May, 1980 allowing the writ petition filed by respondent No. 4 Dr. Kameshwar Prasad and quashing the impugned advertisement No. 121, 1978 issued by the Bihar Public Service Commission inviting applications for the post of Deputy Director (Homeopathic) in the Directorate of Indigenous Medicines. Health Department, State of Bihar from scheduled caste candidates, and the consequent order of the State Government dated 30th May, 1979 for the appointment of the appellant Dr. Chakradhar Paswan to that post.

2. A few essential facts would elucidate the nature of the controversy. Prior to 1974 the Directorate of Indigenous Systems of Medicines was a part of the Health Department. On 14th March, 1974 the State Government appointed Dr. Nagesh Dwivedi, Manager, State Ayurvedic and Unani Medical Pharmacy, Bihar on an ad hoc basis to the post of Director (indigenous Medicines). He assumed charge on the next day and was confirmed in that post on 11th December, 1976. The State Government on 6th May, 1978 directed the creation of a separate Directorate of Indigenous Medicines, the Director being from one of the systems of medicines consisting of Ayurvedic, Unani and Homeopathic. At the time of creation of the separate Directorate, the Government sanctioned the posts of two Deputy Directors for each of the two remaining systems. The State Government had in the meanwhile on the basis of the decision of this Court in M. R. Balaji v. State of Mysore, (1963) Suppl. (1) SCR439: (AIR 1963 SC 649) by its circular dated 8th November, 1975 prescribed a 50 point roster to implement the policy of reservation to posts and appointments for members of the backward classes under Art. 16 (4 ) It was laid down that if in any grade, there is only one vacancy for the first time, then it will be deemed to be unreserved and for the second time also, if there be only one vacancy, then it will be deemed to be reserved. Acting upon the roster the Joint Secretary to the Government, General Administration Department (Personnel) made a proposal on 13th June, 1978 for reservation of the post of Deputy Director (Homeopathic) for members of the scheduled castes. He said that in the Directorate of Indigenous Medicines, three posts had been sanctioned (1) Director of Indigenous Medicines (2) Deputy Director (Homeopathic) and (3) Deputy Director (Unani). All these posts were Class I posts. He suggested that according to the roster of appointments, out of these three posts the first, namely, that of Director which had been filled by Dr. Nagesh Dwivedi, be treated as unreserved, the second should be treated as reserved for a scheduled caste candidate and the third should be unreserved. According to him, all the posts could be grouped together from the viewpoint of reservation. After the qualifications had been prescribed in consultation with Dr. Jugal Kishore, Advisor to the Government, the Health Minister passed an order on 28th July, 1978 for the reservation of the post of Deputy Director (Homeopathic) for a scheduled caste candidate. The Public Service Commission on being moved by the Government, issued the impugned advertisement inviting applications from members of the scheduled castes and the appellant was selected for appointment to the post. Apprehending that the Government would appoint the appellant to the post. respondent No. 4 moved the High Court by a petition under Art. 226 of the Constitution for the grant of an appropriate writ, direction or order. The Government however by order dated 30th May, 1979 appointed the appellant to the post of Deputy Director (Homeopathic) and he assumed charge to that post, and was later confirmed in the post. Although the appointment of the appellant has been declared to be invalid by the High Court, he is continuing to hold the post by virtue of the interim stay granted by this Court on 26th June,1980.

3. It appears t