The entitlement of a candidate for a choice posting as per the vacancy and position in the merit list should be considered by the State, and the court has the authority to direct the State to make suitable appointments based on such entitlement.

Heard learned counsel for the petitioner, the State and Respondent No 4.

2. This writ application has been filed for direction to the Respondent-State to post the petitioner as Resident Surgical Officer in Patna Medical College & Hospital after quashing the orders, as contained in Annexures 3 and 4, so far the same relate to petitioner and Respondent No.4.

3. Admittedly, the petitioner and Respondent No.4 applied for the post of Resident Surgical Officer along with several other persons and name or the petitioner in the merit list was 21 whereas that of Respondent No. 4 was 22 in the general category.

4. By order dated 21.4.1990, contained in Annexure-1, 20 persons who were at serial nos. 1 to 20 all of whom were above the petitioner in the general category, were appointed and 7 persons were appointed from the reserved category in different Medical Colleges within the State of Bihar.

5. On 18.5.1990, the Superintendent, Patna Medical College anti. Hospital (hereinafter referred to as the 'PMCH') by his communication, contained in annexure-2 reported that Dr. (Smt.) Kalyani Kumari Gupta, who was appointed as Resident Surgical Officer in P.M.C.H. did not join. As such one post of Resident Surgical Officer in P.M.C.H. fell vacant on that day. Thereafter one Mrs. Prabha Sinha, who was posted as Resident Surgical Officer in Jawahar Lal Medical College and Hospital, Bhagalpur, made a representation that one post of Resident Surgical Officer was lying vacant in Nalanda Medical College & Hospital, which was her choice posting. As such, she should be posted there.

6. The State Government by its order dated 20.9.1990 (Annexure-3) issued a notification in partial modification of the Government order, as contained in Annexure-1, and thereby transferred Dr. Prabha Sinha from the aforesaid Bhagalpur College to P.M.C.H., Patna as Resident Surgical Officer. By the same very notification the petitioner has been posted as Resident Surgical Officer in the aforesaid Bhagalpur College. On that very day on 20.9.90, the State Government has issued another notification, contained in Annexure-4, by which four persons, including the Respondent No.4 (Dr. Nilam), whose names find mention in the aforesaid merit list below the petitioner, have been posted in different Medical Colleges. Respondent No.4 by the said order has been posted as Resident Surgical Officer in P.M.C.H.

7. Learned counsel appearing on behalf of petitioner contended that the petitioner was above Respondent No. 4 in the merit list and her first choice of posting was P.M.C.H. As such on the date of passing orders, contained in Annexures 3 and 4, she should have been given posting in P.M.C.H., as the vacancy was lying in that College since 18.5.90 and on the date of passing orders, as contained in Annexures 3 and 4, the said vacancy was still in existence.

8. Learned counsel appearing on behalf of Respondent No.4 on the other hand, has taken a stand that the order, contgined in Annexure-3 has been passed in partial modification of Annexure-1. According to the learned counsel, as a matter of fact there were 21 vacancies in general cateaory; but the State was under a mistaken notion that there were only 20 vacancies. Therefore it was submitted that the order of appointment of the petitioner, contained in Annexure-3, posting her to Bhagalpur College as Resident Surgical Officer, shall be deemed to have been passed on 21.4.90 and on that day there was no vacancy in PMCH.

9. In view of these facts it was submitted that the order posting Respondent No. 4 as Resident Surgical Officer in PMCH is quite justified.

10. From the aforesaid facts it becomes clear that though the petitioner was entitled for consideration in April, 1990 but her case was not considered at that time and the same was considered for the first time on 20.9.90. On 20.9.1990 admittedly a post was vacant in P.M.C.H. and since the petitioner was at the top of the list of remaining candidates in the merit list, she was entitled to be