N. Roy, J.

1. Heard Counsel for the parties.

2. By this writ application, the petitioner has prayed for quashing the order dated 19-1-1996, as contained in annexure-4, by which she has been posted on promotion as Associate professor in the department of microbiology, S. K. M. College, Muzaffarpur and also for issuance of a writ of mandamus commanding upon the respondents to post the petitioner in P. M. C. H. Patna as Associate Professor, department of Microbiology, according to merit-cum-choice.

3. Learned Counsel appearing on behalf of the petitioners submitted that the petitioner was the seniormost doctor in the panel of Assistant Professors microbiology, as contained in annexure-1 to the writ-application, and pursuant to letter dated 11-9-1991, as contained in Annexure-2, she had exercised her option for her posting on promotion as Associate Professor, micro-biology, in P. M. C. H. , Patna.

4. It is further submitted, that the petitioner had become eligible for komotion to the post of Associate ofessor, Microbiology, on 17-9-1992 but she was not posted on the promotional post despite the post being vacant and ultimately vide impugned order as contained in Annexure-4, she has been posted on the post of Associate Professor, microbiology, in S. K. M. , College, muzaffarpur, ignoring her seniority and option exercised by her for her posting on promotion in P. M. C. H. , Patna.

5. It is further submitted that respondent No.5, Dr. Shankar Prakash, being a juniormost in the panel of Assistant professors of the department of microbiology, has been posted on the post of Associate Professor, Micro-biology, in P. M. C. H. , Patna, contrary to the circulars and decisions of the State government and also contrary to the decisions of this Court as well as of the supreme Court.

6. Mr. Sudhir Kumar Katriar, learned Counsel appearing on behalf of the petitioner, submitted that since the petitioner was seniormost in the panel of Assistant Professors, Micro-biology, and she had become eligible for promotion in the year 1992 itself and since she had exercised her option for her posting in P. M. C. H. , Patna, she could have been posted as the Associate Professor, micro-biology, in P. M. C. H. , Patna itself. She also submitted that in no case respondent No.5 could have been posted in P. M. C. H. , Patna, on the post of Associate Professor, Microbiology, as he petitioner was the seniormost in the panel of Assistant Professors, Microbiology, and she had exercised her option for her posting in P. M. C. H. , Patna.

7. In this case, two sets of counter-affidavits have been filed-one on behalf of the respondent State and the other on behalf of respondent No.5.

8. The counter-affidavit filed on behalf of the respondent State is not comprehensive, and it has merely been stated there in that since the post of associate Professor, Micro-biology, had fallen vacant in S. K. M. College, Muzaf-Marpur, the petitioner was posted in that very Medical College as against a clear-cut vacancy, which as stated above has fallen vacant in the year 1990. It has also been stated in the counter-affidavit of the respondent State that since the vacancy in P. M. C. H. Patna, was a resultant vacancy after the promotion of one dr. Ramjee Prasad on the post of professor in the department of microbiology and since there was no clear-cut vacancy for accommodating the senior-most candidate as per merit-cum-choice, the petitioner was posted as against the clear-cut vacancy, which was available in S. K. M. College, Muzaffarpur.

9. Mr. Ram Balak Mahto learned senior Counsel appearing on behalf of respondent No.5, submitted that as per the merit-cum-choice, the petitioner has rightly been posted as against the clear-cut vacancy, which was available in s. K. M. College, Muzaffarpur. He further submitted that the petitioner could not have been posted on the post of associate Professor, Micro-biology, in p. M. C. H. , Patna, as there was no clear cut vacancy and there was a re