TMI Blog1972 (10) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... been appointed a Civil Assistant Surgeon in Bihar State Medical Service in 1954. He was confirmed in that post in 1957 and was appointed in that Post in 1957 and was appointed a Tutor in 1957 in Surgery at Rajendra Medical College, Ranchi on 17-7-1962. He held that post till be filed the petitions. 3. Respondent No. 5 was appointed as a Civil Assistant Surgeon in the Bihar State Medical Service in 1956 and was confirmed in that post in 1961. He worked as a Casualty Officer in the Darbhanga Medical College Hospital from 23 9-1959 to 5 8 1963 and thereafter on 23-9-1963 he joined the Patna Medical College Hospital as the Assistant Surgical Officer which post he held till he was appointed lecturer in Surgery at Rajendra Medical College, Ranchi on 19-8-1965. 4. Respondent No. 6 was initially appointed to a Gazetted post as Anti Malaria Officer on 16-4-1953 and was subsequently absorbed in the cadre of the State Medical Service with effect from May 1, 1957. On a representation made by him regarding his previous service, an order was passed by the Government on April 19, 1963 (Annexure VI) declaring that he would be treated as the Junior most temporary direct recruit of 1953 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes posts of Deputy Directors and equivalent posts and (iv) Directors of Health Services. On the teaching side also, there were four classes (i) junior teachers (ii) lecturers, (iii) Professors and (iv) Principals. Junior teachers were of the same grade as the Civil Assistant Surgeons in the non-practising scale of ₹ 415/-tp ₹ 925/-. The lecturers were analogous to the selection grade posts in the scale of pay as those who are included in classes (ii) and (iii) on the administrative, side, while the principals held a position slightly inferior to that of the Director of Health Services. It will be thus seen that the several posts on both sides ran almost on parallel lines and it is the case of the State Government that the teaching posts are filled on an officiating basis by deputation of officers borne on the administrative side. As the teachers are always regarded as on deputation, they could be withdrawn to the administrative side. The salary of those who were deputed to the teaching side was protected by the application of the next below rule . 7. In its brief reply to the petition the State Government relied upon the counter-affidavits filed on behalf of respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequently on the 31st March, 1965 when the panel of eligible candidates were drawn up for consideration, he had a teaching experience of only two years 8 months and 15 days, which is even less than the very minimum length of experience to qualify, for consideration in accordance with the recommendation of the Indian Medical Council. 9. It is clear from the above that according to the State Government Dr. Saran was not eligible for appointment at the time the decision was taken i.e. on March 31, 1965. Respondents 5 and 6 were so eligible and therefore, Dr. Saran, it was submitted, had no right to ask for a mandamus. 10. This court has pointed out in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College 1962 (2) Suppl. S.C.R. 144 that in order that mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved party had a legal right under the Statute to enforce its performance. It is contended on behalf of the State that apart from the fact that respondents 5 and 6 had been validly appointed in accordance with the practice followed by the Government, Dr. Saran, who was not eligible for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t letter the Secretary on 6-2 1964 informed the Government that though they were not very much in favour of Casualty Officers being recognized as holding teaching posts the Executive Committee had decided that the teaching done by the 8 Doctors as Casualty Officers shall be counted, as a special case, as teaching done by the Registrar for the purposes of appointment to the higher posts. It will be seen that this decision had been taken quite a long time before the Writ Petition had been filed. Respondent No. 5, therefore, found a place in the same class as Registrars, Tutors etc. 12. Similar is the case of respondent No. 6. He held a supernumerary post of a Civil Assistant Surgeon attached to the Patna Medical College Hospital from 30-12-1959 and while in that post had to teach under-graduate and post-graduate students. On 22-10-1962 Govt. issued a notification that 8 Doctors including respondent No. 6 were permitted to count certain periods of their service towards teaching experience. Respondent No. 6 was permitted to count his service from 30-12-1959 towards teaching experience. Later, on 20-4-1963 Government seems to have gone back on this decision. But on representations be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. 5 it is true that respondent No. 5 was his junior in service. But he had the requisite minimum teaching experience which the petitioner did not have. It is not necessary for us to consider in this case whether the lecturer's posts which were in class I service were filled by promotion, as contended for the appellant, or by deputation, as contended on behalf of the State. Assuming that the appellant's contention is correct that the lecturer's posts were filled by promotion, then it will have to be shown that the appellant, though he had the requisite qualification for his promotion, had been disregarded in favour of a junior. The answer made by the State Government is that they had taken the decision to fill the posts on March 31, 1965 and on that day the appellant had not even completed the minimum period of teaching experience while the other two had done so. In other word the case is that the appellant was ineligible for appointment when the decision was taken. It is true that the appointment was actually notified on 19-8-1965 when the appellant had also completed his 3 years of experience. But obviously that is irrelevant. Decisions have to be taken f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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