S.N.Jha, J.

1. As the issues involved in this batch of writ petitions are common, they have been heard together and are disposed of by this common order. The petitioners, 15 in all, are aggrieved by memo No. 729(17) dated 17.9.2002 of the Health, Medical Education and Family Welfare Department, to the extent of postings of Tutors in Physiology and Preventive Social Medicine (PSM) Departments in different Medical Colleges and consequential repatriation of the petitioners from the post to the Health Service Cadre. It may be stated at the outset that the repatriation of the petitioners is on the ground of lack of the post graduate qualification in the concerned subjects i.e. Physiology and PSM.

2. The case of the petitioner is that they had exercised option for the Medical Education Service Cadre in terms of Rule 6(ga) of the Bihar Medical Education Service Cadre and Recruitment Rules, 1997 (in short 1997 Rules), as a result whereof they become members of the teaching cadre i.e. the Bihar Medical Education Service Cadre and they cannot be repatriated or transferred to any other cadre without their consent. Further case of the petitioners is that in the advertisement and/ or orders of appointment, no such condition was laid down that they should have post graduate qualification in the concerned subject. In response to the stand of the State that such a requirement was laid down under resolution of the State Government fixing the criteria for appointment on various teaching posts in 1977 itself, vide Annexure A to the counter affidavit, it has been contended that the said resolution has no legal sanctity in the face of the Regulation of the Medical Council of India (MCI) under which the minimum qualification for appointment on the post of Tutor is MBBS degree, and therefore, it was/is not open to the State Government to fix any higher qualification in derogation of the MCI Regulation. Finally, it is said that the petitioners have remained on the post of Tutor for long periods, they should not be transferred/repatriated to the Bihar Health Service Cadre especially when such action was not taken all these years.

3. It is not in dispute that the State Government framed the 1997 Rules for better functioning of the medical colleges and teaching hospitals in which the eligibility has been laid down for appointment/promotion on various teaching posts. It is relevant to mention here that in terms of Rule 8 of the said Rules, the first point of entry in the Medical Education Service Cadre is the post of lecturer. The higher posts of Assistant Professor and Associate Professor are to be filled up by promotion. As regards the post of Professor, special provision has been made for direct appointment on the basis of open selection. It is not necessary to refer to further details in this regard.

4. It is relevant to mention here that by reason of Rule 5 (kha) of the said Rules, the posts of Resident and Registrar stand converted into post of lecturer. It was submitted on behalf of the petitioners that the Rule mentions the posts of Resident and the Registrar but there is no mention of the post of Tutor and therefore, there cannot be deemed conversion of that post into the post of lecturer. It may not be out of place to mention that the posts of Tutor are available in only nonclinical subjects such as Physiology and PSM where there are no posts of Resident and Registrar. It is not in dispute that the promotional post for Tutors even in nonclinical subjects is the post of Assistant Professor. Thus, if the erstwhile posts of Resident and Registrar stand converted into the post of lecturer for which the promotional post is Assistant Professor, the post of Tutor must be treated as equivalent to the post of lecturer, if Tutors are to be promoted as Assistant Professor. In fact even for the post of lecturer, under the 1997 Medical Education Service Cadre Rules, the minimum qualification prescribed is post graduate degree in the concerned subjec