S.J. Mukhopadhaya, J.

1. In all these writ petitions, as common Notification of Transfer No, 318(2) dated 18th August, 2001 is under challenge, they were heard together and are being disposed of by this common order.

2. Petitioners, Dr. Nandjee Singh of W.P. (S) No. 3970 of 2001 and Dr. Satyarain Singh of W.P. (S) No. 4054 of 2001, while challenged the Notification of transfer on the ground that they have been transferred outside the Medical Teaching Cadre, petitioner Dr. Ram Sewak Sahu of W.P. (S) No. 4028 of 2001 has challenged the same on other ground.

3. For determination of the question raised by some of the petitioners, it is necessary to take into consideration the relevant facts, as emerged from Notification dated 21st May, 1997 issued by the State.

The State Medical Service was commonly known as Bihar Health Service. The teaching posts were available with Medical Colleges which were ex-cadre posts and had no separate cadre. The eligible members of the Bihar Health Service used to be appointed by transfer to the basic tenure and nontenure posts, out of which the higher posts like Assistant Professor; Associate Professor; Professor etc. used to be filled up. The posts like Resident Doctors i.e. Resident Medical Officer (R.M.O.); Resident Surgical Officer (R.S.O.) and the Registrars were junior most three years tenure teaching posts. The next higher posts were of Assistant Professor; Associate Professor and Professor etc., which were now tenure posts.

4. The Governor of Bihar taking into consideration the relevant facts and in public interest, framed rules under proviso to Article 309 of Constitution, published vide Notification No. 162(17) dated 21t May, 1997 and created a teaching cadre, commonly known as "Bihar Medical Education Service Cadre and Appointments to its Cadre Post Rule, 1997".

5. The tenure teaching posts like RMO/ RSO and Registrar were designated as Tutor and were made non-tenure posts of the cadre. The other non-tenure teaching posts of Assistant Professor, Associate Professors. Principals of Medical Colleges, as also the post of Deputy Director, Joint Director-cum-Controller of Examination and Director/Additional Director of Directorate were also brought in such teaching cadre.

For the purpose of calculation of strength of teaching cadre, under Rule 5(KA), it was stipulated that the posts as were available on 1st April, 1997 shall be the strength of the cadre.

Rule 5(GA) therein, it was also stipulated that the officers who were holding the teaching posts on the date, may give option to continue in the Medical Education Cadre or to switch over to the parent cadre of Bihar State Health Service. Those who will not give option, shall be reverted to the parent cadre of Bihar State Health Service.

6. The petitioner Nandjee Singh of W.P. (S) No. 3970 of 2001 entered the Bihar State Health Service a Civil Assistant Surgeon, in 1976, obtained M.D. in Pathology in the year 1982 and was posted as Bio-chemist in Artificial Kidney Unit in February, 1982. Thereafter, he was sent to Chandigarh for specialist training in Netrology in PGI Chandigarh which was subsequently held in AIIMS. New Delhi and was later on posted as Bio-chemist in the Artificial Kidney Unit of RMCH. Ranchi.

By Impugned Notification dated 18th August, 2001, he has been transferred as Medical Officer, Primary Health Centre, Mohanar Tand. Palamau.

7. The petitioner, Dr. Satyaram Singh of WP (S) No. 4058 of 2001 was also appointed in the Bihar State Health Service and since 1994 working as Medical Officer in the Department of Preventive and Social Medicines - (PSM for short) - RMCH. Ranchi. By impugned Notification dated 18th August, 2001, he has been transferred as Medical Officer. Sadar Hospital, Dumka.

8. According to both the petitioner. Dr. Nandjee Singh and Dr. Satyaram Singh, they are working against teaching posts since prior to 21st May, 1997 i.e. the date Bihar Medical Education Teaching Cadre was created and they having given option under Rule