Shivaji Pandey, J.

Heard learned counsel for the petitioner and learned counsel for the State.

2. In the present case, the petitioner is seeking relief for quashing the letter No. 6027 dated 12.02.2013 (Annexure-13), whereby the petitioner has been informed that he does not possess the requisite experience of three years as Senior Resident and therefore, he has been disqualified and not included in the merit list pursuant to the Advertisement No. 17 of 2011 and further relief has been sought to issue a writ of mandamus, commanding the respondents to produce the decision before this Court, by which the petitioner has been declared to be disqualified.

3. The Primary question in the present matter is involved that the petitioner has performed the duty as Senior Resident not in a substantive manner, but was allowed to perform the duty for three years on deputation/ad-hoc/officiating, will be sufficient experience for the consideration of his case as requisite qualification for the appointment to the post of Assistant Professor.

4. The short facts of this case are that the petitioner was appointed as a Medical Officer on 06.10.1990 and was transferred to Primary Health Centre, Chakmeshi, Kalyanpur, Samastipur in the year 2000. He was posted at D.M.C.H., Cardio-therapy in the department of surgery on 11.10.2006 and thereafter, the petitioner was deputed as Senior Resident in the unit of D.M.C.H. on 30.04.2007. It appears from the certificate dated 27.5.2011 issued by the Superintendent of D.M.C.H. that the petitioner has worked as Senior Resident on deputation basis from 30.04.2007 to 09.05.2011. In paragraph No. 7 of the writ application, the petitioner has specifically stated that the petitioner was permanently posted to the post of Senior Resident, Department of Surgery D.M.C.H. and was working on the said post till the filing of the present writ application. By way of oral submission, it is submitted that the petitioner has been appointed on contract basis as an Assistant Professor in Betiah Medical College.

5. An advertisement was published on 09.07.2011 for the appointment of Assistant Professor in different stream/departments including Surgery department, where 20 posts have been shown to be vacant, giving details of number of vacancies of different categories, in which two vacancies have been identified for the backward class category - II. As the petitioner belongs to backward category - II he applied against the said vacancy. The petitioner and others participated in the interview, but the petitioner could not be selected on the ground that he does not possess the experience of three years as a Senior Resident.

6. It is not in dispute that the petitioner was allowed to participate in the interview, but the learned counsel for the Commission submits that the petitioner was provisionally allowed to appear in the said interview.

7. When the petitioner was not selected, he tried to find out the reason for his non-selection and he came to know that two persons namely, Prem Prakash and Ramanand Prasad Sinha have been selected, they have possessed 10 marks and 12 marks respectively whereas the petitioner has obtained 12 marks but his candidature was rejected by the respondents on the ground that he does not possess the experience of three years as a Senior Resident.

8. Learned counsel for the Commission has submitted that so far the factual part is concerned, the Commission has not disputed the fact that the petitioner has discharged the duty of Senior Resident on deputation but only point is left for consideration to this Court is as to whether the period the petitioner has discharged his duties on deputation as Senior Resident would be counted as an experience for the purposes of selection to the post of Assistant Professor or not ? Basically the thrust has been made that as there is no substantive appointment of Senior Resident, his candidature cannot be treated to be valid.

9. In support of his submission, he placed reliance