SHINGHAL, J —Petitioner Dr. S.P. Sudrania passed the M.B.B.S. examination in 1962 and joined the service of the Rajasthan State as Civil Assistant Surgeon on February 28,1964. He was selected for that post by the Rajasthan Public Service Commission, and was confirmed on July 31, 1966 In the meantime he graduated M. D. in Paediatrics from the Rajasthan University in the first attempt in 1966.

2. Dr. K. H. Hemrajani responded No.2, took the diploma in Child Health in 1963, and the M.D. degree in paediatrics in 1964 (in the second attempt). He joined the service of Rajasthan State as Civil Assistant Surgeon on July 20, 1966 and on selection by the Rajasthan Public Service Commission he was confirmed on October 1, 1968.

3. Both the petitioner and respondent Dr. Hemrajani wanted to be appointed as Clinical Tutors in Paediatrics. They were interviewed by the Central Selection Committee on January 4, 1967. Ex. R. 1 records the minutes of the meeting of the Committee by which respondent Dr. Hemrajani was selected and placed at No. 1 in the order of merit, while petitioner Dr. Sudrania was placed at No. 2. The petitioner was posted as a Clinical Tutor in Paediatrics in Jodhpur and he assumed charge on February 4, 1967 by an order dated January 30, 1967, while respondent Hemrajani was posted in Ajmer and took over charge of Clinical Tutor on February 9, 1967 under the same order. Dr. Hemrajani was however transferred to Jaipur.

4. A vacancy arose in the post of Lecturer in Paediatrics in February 1970 when the professor happened to proceed on leave for further studies. The State

Government issued order Annexure R. 1 No. F. 1 (5) Apptts. /C/ 52 dated March 13, 1970 appointing respondent Hemrajani as Lecturer in Paediatrics. The order reads as follows,-

Dr. Kanhaya H. Hemrajani, CAS & Tutor in Paediatrics S. M. S. Medical College, Jaipur, is here by appointed as Lecturer in Paediatries, S. P. Medical College, Bikaner, purely on temporary and ad hoc basis till further orders."

The petitioner felt aggrieved against that order on the grounds that he ranked senior to Dr. Hemrajani, applications were not invited for filling the post, an equal opportunity was not given to those eligible for it, there was violation of the fundamental right guaranteed by Art 16 of the Constitution and there was breach of the service rules etc. He therefore filed the present writ petion on March 16, 1970. It was admitted on March 17, 1970, and Rule was issued to the respondent. An order was made the same day for the issue of notices of the stay application returnable within a weeks, with the direction that, in the meantime, effect shall not be given to the impugned order [Annexure R. 1] dated March 13, 1970 relating to the appointment of respondent No. 2 as Lecturer in paediatrics if he had not already taken over the charge of that post The respondents, however, took the stand that Dr. Hemrajani had already taken over charge, and the stay application was rejected In view of the nature of the impugned appointment, a direction was then given that the respondents may file their replies within 3 weeks and the case listed for hearing within 5 weeks It appears that it could not be taken up for hearing until now for one reason or the other.

5. Both the respondents have traversed the claim of the petitioner in their replies. The reply of the State of Rajasthan contains some important statements of facts which are within its special knowledge as the employer. Thus the State has stated that the inter-se seniority of the petitioner and respondent No 2 has not been fixed or published, that the quest on of filling the post of Lecturer in paediatrics in accordance with the Rajasthan Medical Service [Collegiate Branch] Rules, 1962. hereinafter to be referred to as "the Rules", did not arise as it was merely a leave vacancy, and that as it was a stop-gap arrangement the post was filled on a purely ad hoc basis to meet a purely temporary need. It has been stated in this connection that t

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