JUDGMENT : The petitioner, Dr, C.M. Srivastava, is a member of the Bihar Health Service and is currently employed as a Tutor in the Patna Dental College. He has filed this application under Articles 226 and 227 of the Constitution for issue of an appropriate writ to quash the appointment of Dr. Hajendra Ram (respondent no. 5), another member of the Bihar Health Service, to the post of a Lecturer in the same college. He has further prayed that certain ORDER :s of the State Government rejecting the representations made by the petitioner in connection with his claim to the same post should be quashed and a mandamus should issue directing the State of Bihar (respondent no. 1) in the Department of Health to make the appointment in accordance with law. 2. At the time when the present writ application was filed, namely on the 19th April, 1968, respondent no. 5 was holding the post of a Lecturer in the said college on an officiating basis, in a leave vacancy, by virtue of an ORDER :of the State Government dated the 25th January, 1968, a copy of which is Annexure “9” to the writ application. But subsequent to the filing of the writ application, the State Government issued another notification dated the 25th June, 1968. a copy of which is Annexure “22”, appointing the 5th respondent to a substantive post of Lecturer in the same college to fill a regular vacancy created on account of the promotion of another Lecturer one Dr. R.P. Singh, (Sic) to the rank of a Professor in the same college. The notification relating to the substantive appointment of Dr. Rajendra Ram as aforesaid was published in the Bihar Gazette on the 10th July, 1968, and it was mentioned therein that the appointment of Dr. Ram to the substantive post of Lecturer in the Dental College was made with effect from the 25th January, 1968. Thereupon the petitioner filed an application on the 18th July. 1968, for amendment of the writ petition and challenging the aforesaid ORDER :of Dr. Rajendra Ram's substantive appointment, as also the retrospective character of the said a appointment, as ultra vires, illegal and mala fide and beyond the competence of the State Government to make such an appointment. The writ petition was amended as prayed for under an ORDER :of this Court dated the 3rd February, 1969. Rajendra Ram's substantive appointment, as also the retrospective character of the said a appointment, as ultra vires, illegal and mala fide and beyond the competence of the State Government to make such an appointment. The writ petition was amended as prayed for under an ORDER :of this Court dated the 3rd February, 1969. In substance, therefore, this is now an application for quashing the notification of the 25th June, 1968 (Annexure “22”) relating to the substantive appointment of respond. dent no. 5 as well as two other ORDER :s of the State Government; one dated the 25th January, 1968, contained in Annexure “12”), and the other dated the 6th March, 1968, contained in Annexure “18” rejecting certain representations of the petitioner, to which reference will be made in due course. 3. Besides the State of Bihar, which is respondent no. 1, and Dr. Rajendra Ram, who is respondent no. 5, the other respondents to this writ application are (i) the Secretary of the Health Department, Government of Bihar, (ii) the Director of Health Services, Bihar, and (iii) the Principal of Patna Dental College, who are respectively respondents 2, 3 and 4. 4. In pursuance of the rule issued by this Court, the State of Bihar has appeared and filed a counter affidavit and cause has been shown on its behalf by the learned Advocate General. Respondent no. 5 has also shown cause both by means of an affidavit as well as through Mr. J.C. Sinha, who appeared before us on his behalf. Some more supplementary affidavits and affidavits in reply have been filed by the parties in this application by way of supplementing their respective pleadings, to which reference will be made only wherever necessary. 5. At the outset I propose to mention certain facts, in regard to which there is no dispute before us. The petitioner joined the Dental College and Hospital at Lucknow in August, 1949 and obtained a Degree of Bachelor in Dental Surgery (B.D.S) from the University of Lucknow in August. 1954. For a little over eight months, that is to say, from the 15th November, 1955, to the 31st July, 1956, he held the post of an Honorary Demonstrator at the Lucknow Dental College on an honorarium of Rs.100/- per month. 1954. For a little over eight months, that is to say, from the 15th November, 1955, to the 31st July, 1956, he held the post of an Honorary Demonstrator at the Lucknow Dental College on an honorarium of Rs.100/- per month. It appears from a certificate granted to the petitioner by the Principal of King George's Medical College, Lucknow (Annexure “10”) and a communication made by the Registrar of the University of Lucknow to the Additional Director of Health Services, Bihar (Annexure “11”), that the post of Honorary Demonstrator in Dentistry, which the petitioner held in 1955-56 at Lucknow, was a teaching post under the Lucknow University. 6. On the 2nd September, 1957, the petitioner entered into the Bihar Health Service and was appointed as a Dental Surgeon in the Sadar Hospital at Bhagalpur, where he served till September. 1961. In the meantime namely in 1960, the Dental College, which is a Government institution, was established at Patna for the first time. In October, 1961, the petitioner left for the United Kingdom for postgraduate studies in Dentistry, after obtaining study leave overseas from the Government of Bihar. On the 30th June, 1965, the petitioner was elected a Fellow in Dental Surgery of the Royal College of Surgeons of Edinburgh (F.D.S.R.C.S.). This is a postgraduate qualification and it appears from a certificate (Annexure “1”) issued to the petitioner by the Royal College of Surgeons that the Fellowship in Dental Surgery to which the petitioner was admitted, having passed the necessary examinations on the 30th June, 1965 is the Dental equivalent of the F.R.C.S. in General Surgery. It has been asserted by the petitioner, and that is not denied that the petitioner is the only Dental Surgeon in the State of Bihar possessing the qualification of F.D.S.R.C.S. and that is a qualification 'which is of recognised repute all over the world”. 7. While still in the United Kingdom, the petitioner sent an intimation to the Government of Bihar to the effect that he expected to return to India in November, 1965, and he did return to India and submitted his joining report to the Department of Health on the 19th November, 1965. The posting ORDER :of the petitioner was, however, not passed until the 5th February, 1966, on which date he was posted as a Tutor in the Patna Dental College. The posting ORDER :of the petitioner was, however, not passed until the 5th February, 1966, on which date he was posted as a Tutor in the Patna Dental College. The petitioner joined that post on the 9th February, 1966 but charge was not handed over to him until the 21st February, 1966. 8. During the petitioner’s absence in the United Kingdom, several appointments were made on the staff of the Patna Dental College. On the 18th May, 1963, Dr. R.P. Singh was appointed as a Lecturer in the college. He is the same person who was subsequently promoted as a Professor and in whose vacancy respondent no. 5 was appointed with effect from the 25th January, 1968. On the 21st April, 1964, respondent no. 5 was appointed in the Bihar Medical Service and posted as a Tutor in the Dental College. On the 1st November, 1964, one Dr. P.N. Gupta, who was working as a Demonstrator in the Patna Dental College, was appointed as a Lecturer in the same college. Dr. R.P. Singh, Dr. Rajendra Ram and Dr. P. N. Gupta were all junior to the petitioner in the cadre of the Bihar Medical Service, subsequently designated as the Bihar Health Service. 9. Regarding the career of Dr. Rajendra Ram also, the following facts are not in dispute. He first obtained an M.B.B.S. Degree from the University of Patna and then joined the Lucknow Dental College, from where he obtained the degree of B.D.S.(Bachelor of Dental Surgery) in 1964. In the same year, that is to say, on the 21st April, 1964, he was, as already stated, appointed in the Bihar Medical Service and posted as a Tutor in the Patna Dental College. In the following year (1965), he proceeded on study leave to Bombay and joined the Bombay Dental College, from where he obtained the degree of M.D.S. (Master in Dental Surgery) of the Bombay University in April, 1967. On his return from study leave, he resumed his duties as a Tutor in the Patna Dental College with effect from the 12th May, 1967. 10. The further undisputed fact is that on the 3rd October, 1967, Dr. P.N. Gupta proceeded on leave and an occasion arose for choosing a Lecturer to fill the leave vacancy which was thus caused. It was in this leave vacancy that Dr. Ram (respondent no. 10. The further undisputed fact is that on the 3rd October, 1967, Dr. P.N. Gupta proceeded on leave and an occasion arose for choosing a Lecturer to fill the leave vacancy which was thus caused. It was in this leave vacancy that Dr. Ram (respondent no. 5) was appointed as a Lecturer in the first instance with effect from the 25th January, 1968. Simultaneously there with the authorities were also considering the case of another Lecturer, Dr. R.P. Singh, for promotion to the rank of a Professor. In March; 1968, they appointed him as a Professor with retrospective effect from the 4th August, 1967. Thus a substantive post of Lecturer fell vacant and it was in this substantive vacancy that respondent no. 5 was appointed on a substantive basis with retrospective effect (from the 25th January, 1968) under the notification of the 25th June, 1968 (Annexure ‘22’), which is now under challenge. 11. I will now refer to certain Regulations framed by the Dental Council of India which has been constituted under the Dentists Act, 1948 (Act XVI of 1948). Under Section 20, which occurs in Chapter II of the Act, the Dental Council has been empowered, with the approval of the Central Government, to make “regulations not inconsistent with the provisions of this Act” to carry out the purposes of this Chapter, and Subsection (2) of Section 20 lays down that such regulation may : “(g) prescribe the standard curricula for the training of dentists and dental hygenists, and the conditions for admission to courses of such training; (h) prescribe the standards of examinations and other requirements to be satisfied to secure for qualifications recognition under this Act.” There is a proviso appended to Sub-section (2), which enjoins that regulations framed under Clauses (g) and (h) must be made after consultation with the State Governments. There are materials before us which show that the regulations to which I am about to refer were framed by the Dental Council not only with the approval of the Central Government, but also with the consultation of the State Government : vide Annexure “C-1”. 12. The Regulations with which we are concerned in this case are those which incorporate “Basic principles for the maintenance of minimum educational standard for the profession of Dentistry”. The relevant portions there• of are as follows : 8. 12. The Regulations with which we are concerned in this case are those which incorporate “Basic principles for the maintenance of minimum educational standard for the profession of Dentistry”. The relevant portions there• of are as follows : 8. Minimum Staff for a Dental College : Dental Staff: Designation Number of Posts. Principal/Dean/ One Director of Dental Studies. Professor Seven “General In ORDER :to regularise and standardise the conferment of dental degrees, it is recommended that: 1. Dental Faculties should be established in all the Universities conferring the Degree of Bachelor of Dental Surgery (B.D.S.). 2. Dental Colleges should be directly affiliated to a University. 3. The course of studies should extend over a period of four academic years. 4. .............................. 5. There should be : (a) Uniformity in curriculum standards, technical and clinical requirements and standard of examination; and (b) Supervision over all Dental Institutions to see that the minimum standards are maintained. 6. ............................. 7. ........................................ Minimum basic qualifications and teaching experience required for appointment. Should have a recognised degree of B.D.S. of an Indian University or a qualification included in Part II of the Schedule to the Dentists Act, 1948 with the exception of item (2), (3), the qualification of the American Dental College, Karachi, if granted on or before the 31st December, 1936, and the diploma of (now defunct) the Punjab Dental College/Dental and Optical College, Lahore, if granted on or before the 14th August, 1947, recognised by the Council under item (30) of Part II of the Schedule to the Act, with 10 years' teaching experience of which 5 years should be as a Professor. Should possess the same qualifications as mentioned above with a Post-graduate qualification in the subject with 6 years teaching experience of which 3 years should be as an Assistant Professor/Reader/ Senior Lecturer. Assistant Eight Professor/Reader/ Senior Lecturer. Junior Number should be as Lecturer/ per Notes 4, 5 and 6 Tutors/ on Page 22 Demonstrator. House Should be appointed Surgeons. in each Department Note: When candidates with requisite teaching experience are not available reference should be made to Dental Council of India to condone the same. Medical Staff. For the teaching of medical subjects, it is recommended that provisions be made for the following additional staff at a medical college to teach medical subjects to the students of the Dental College :- (1) ………………………….. (2) ………………………….. (3) ………………………….. (4) ………………………….. Medical Staff. For the teaching of medical subjects, it is recommended that provisions be made for the following additional staff at a medical college to teach medical subjects to the students of the Dental College :- (1) ………………………….. (2) ………………………….. (3) ………………………….. (4) ………………………….. (5) ………………………….. (6) ………………………….. (7) ………………………….. Note:- 1. The Principal/Dean/Director of Dental Studies and the seven Professors-combined strength of eight should be the heads of the following departments: 1. ………………………….. 2. ………………………….. 3. ………………………….. 4. ………………………….. 5. ………………………….. 6. ………………………….. 7. ………………………….. 8. ………………………….. Note-2: All the members of the staff teaching dental subjects must be registered on Part “A” of the Dentists Register maintained under the Dentists Act, 1948 (XVI of 1948) Note-3: All the members of the staff teaching medical subjects should have qualifications as prescribed by the Medical Council of India for such posts. Should possess the same qualification as mentioned above with three years teaching experience. Should possess a recognised dental qualification within the meaning of Section 2 (j) of the Dentists Act, 1948. Same as above. In the event of non-availability of Medical graduates, the minimum qualification for the post of Tutors and Demonstrators may be relaxed so as to allow persons possessing B.D.S. degree with a post-graduate qualification in that subject Note-4: ................................................. Note-5: ................................................ Note-6: ................................................ Minimum Physical Requirements of a Dental College :– ............................................................. ....................................... ............................................................. ....................................... 13. It will be observed that for the post of a Lecturer in a Dental College the minimum qualifications prescribed by the Dental Council are: (i) A post-graduate qualification in the subject; and, (ii) Three years' teaching experience; with this rider that when candidates with requisite teaching experience are not available, a reference should be made to the Dental Council of India to condone the same. It is this portion of Regulation 8, particularly the provision relating to condonation of the teaching experience upon which considerable reliance has been placed in support of the petitioner's case. 14. It appears that shortly after joining the Dental College as a Tutor, the petitioner made a series of representations to the Director of Health Services for being appointed as a Lecturer in the Patna Dental College. 14. It appears that shortly after joining the Dental College as a Tutor, the petitioner made a series of representations to the Director of Health Services for being appointed as a Lecturer in the Patna Dental College. His first representation was on the 14th April, 1966, as per Annexure “2”, in which he called the attention of the Director of Health Services to the following facts: (i) That he had worked as a fulltime Honorary Demonstrator at Lucknow Dental College from 15th November, 1955 to 31st July, 1956. (ii) That during his stay in the United Kingdom, he had attended Postgraduate course in the University of London and had worked as a Senior Hospital Officer in Liverpool Dental College for one year (from the 1st October, 1964, to 30th September, 1965), during which period he used to look after the 3rd and 4th year students attending the clinics. (iii) That he was eligible for the post of Lecturer in accordance with a circular issued by the Dental Council of India to the effect that only persons with post-graduate qualifications should be appointed to the post of Lecturer in a Dental College. In fact he was, at the time of making the representation, the first and the only Dental Surgeon with post-graduate qualifications, posted at the Patna Dental College and Hospital. This representation (Annexure “2”) concluded by saying: “10. That as per Government Circular No.I-M3-2077/63-2832-H (B) teaching experience is allowed to those candidates who proceed on further training from a teaching institution, but since there existed no Dental College and there was scheme for opening a Dental College in the State of Bihar, when I applied for leave, for higher training abroad (copy of application attached), I request that teaching experience may be granted to me from the date, the above circular came in force i.e. 1st April, 1963. 11. That at present I am posted as a Tutor in Patna Dental College and Hospital from 9th February, 1966.” 15. Before this representation was disposed of the petitioner made his second representation on the 20th July, 1966, as per Annexure “3”, I wherein he referred to the qualifications prescribed by the Dental Council of India for appointment to the post of Lecturer in Dental College and the provision for condonation when candidates with requisite teaching experience are not available. Before this representation was disposed of the petitioner made his second representation on the 20th July, 1966, as per Annexure “3”, I wherein he referred to the qualifications prescribed by the Dental Council of India for appointment to the post of Lecturer in Dental College and the provision for condonation when candidates with requisite teaching experience are not available. As regards his teaching experience, the petitioner stated in Annexure “3” that “I have up till now a teaching experience of little more than 12 months as detailed below: (1) Full time Hony. Demonstrator in Lucknow Dental College and Hospital, Lucknow from 15th November, 1955 to 31st July, 1956. (2) Tutor in Patna Dental College and Hospital from 9.2.66 still continuing.” The representation (Annexure “3”) further stated: “It is true that my teaching experience is less than the prescribed teaching experience of three years, but as I have already stated above, while any deficiency in the prescribed qualifications is not condonable, shortage in the period of teaching experience is condonable in cases of those who possess the prescribed qualification, deficiency on the prescribed period of teaching experience has on the past been actually condoned by the Government on the matter of appointment of Lecturer in Dental College, Patna.” The petitioner, therefore, prayed that he should be appointed to the post of Lecturer in Dentistry, which was being created by the Government. After referring to both these representations in paragraph 9 of the writ application, it has been stated in paragraph 10 that by a Government letter (Annexure “4”) dated the 21st February, 1967, the petitioner was told that his representations had been rejected as the Government had decided that he did not fulfil conditions of promotion. Annexure “4” shows that similar representations had been made to the Government by two other persons, namely Dr. R.N. Chatterjee and Dr. B.K. Choudhary, and it was after considering the representations of all the three doctors (Dr. Chatterjee, Dr. Srivastava and Dr. Choudhary) that the Government had decided that “none of the candidates fulfil the conditions of promotion and hence their representations have been rejected.” 16. R.N. Chatterjee and Dr. B.K. Choudhary, and it was after considering the representations of all the three doctors (Dr. Chatterjee, Dr. Srivastava and Dr. Choudhary) that the Government had decided that “none of the candidates fulfil the conditions of promotion and hence their representations have been rejected.” 16. It appears that the petitioner had made two more representations to the Government; one on the 30th January, 1967, and the other on the 6th May, 1957, in connection with his claim for recognition of his teaching experience for the period 15.11.1955 to 31.7.1956, which may for the sake of convenience be referred to as the “Lucknow period”. These two representations of the petitioner are not on the record. But the fact that they were on the subject of recognition of his teaching experience of the Lucknow period is abundantly clear from Annexure “12” dated the 25th January, 1968, which is the copy of a letter sent to the Principal of the Patna Dental College by the Director of Health Services under a copy to the petitioner, and is in the following terms: “Subject : Recognition of teaching experience of Dr. C.M. Srivastava for a period from 15.11.55 to 31.7.56. Sir, With reference to Dr. C. M. Srivastava's representation dated the 30th January, 1967, and 6th May, 1967 on the above subject, I am to say that the period from 15th November 1955 to the 31st July 1956 during which he worked as Honorary Demonstrator cannot be counted towards teaching experience. Hence the representation of Dr. Srivastava is rejected. Dr. Srivastava may please be informed accordingly. Yours faithfully, Sd/- S.N. Prasad. 25.1.65 Director of Health Services, Bihar, 17. Before the Government ORDER :contained in Annexure “12” dated the 25th January, 1968, came to be passed, the petitioner put in a fresh representation to the Government as per Annexure “16” dated the 17th July, 1967. This representation related to the period between the 19th November, 1965, and the 20th February, 1966, and to appreciate it, it is necessary to mention a few more facts which are not in dispute before us. 19th November, 1965, is the date on which the petitioner had submitted his joining report in the Health Department upon his return to India after obtaining the degree of F.D.S.R.C.S. (Edin.). 19th November, 1965, is the date on which the petitioner had submitted his joining report in the Health Department upon his return to India after obtaining the degree of F.D.S.R.C.S. (Edin.). But as I have already stated, the ORDER :for posting the petitioner as a Tutor in Patna Dental College was not passed until the 5th February, 1966, and although the petitioner had joined as a Tutor in the Patna Dental College on the 9th February, 1966, formal charge was not handed over to him until the 21st February, 1966. Since the petitioner was already in the service of the Government from before proceeding to the United Kingdom on postgraduate study leave, a question arose as to how the period between the 19th November, 1965, and the 20th February, 1966, should be treated. The Government decided that the petitioner would be deemed to have been on supernumerary duty (popularly known as Supy. duty) for the aforesaid period. An ORDER :to this effect was passed on the 20th March, 1967. In his representation (Annexure “16”) dated the 17th July, 1967, the petitioner prayed that the aforesaid ORDER :of the 20th March, 1967, should be modified by making an ORDER :of posting the petitioner as a Tutor in the Dental College with effect from the 19th November, 1965. In Paragraph II of the representation (Annexure “16”), the petitioner alleged that ever since he had joined the Dental College, he had been working as a Tutor and, therefore, the Supy. period should be counted towards his teaching experience. No ORDER :s on this representation (Annexure “16”) were passed until 5/6th March, 1968, when as per Annexure “18” the petitioner was informed that his said representation had been rejected. This ORDER :, it will be noticed, was passed after the 25th January, 1968, on which date the notification (Annexure “9”) in respect of Dr. Rejendra Ram's temporary appointment to the post of Lecturer in a leave vacancy had been issued and Dr. Ram had already assumed charge of the said post. 18. The last of the series of the representations was made by the petitioner to the Secretary to Government in the Department of Health (respondent no. 2) on the 13th March, 1968, as per Annexure “20”. Ram had already assumed charge of the said post. 18. The last of the series of the representations was made by the petitioner to the Secretary to Government in the Department of Health (respondent no. 2) on the 13th March, 1968, as per Annexure “20”. After a recapitulation of the various facts mentioned above, it was mentioned in this representation that the petitioner had been arbitrarily discriminated against and that the appointment of Dr. Rajendra Ram to the post of Lecturer was illegal. The petitioner, therefore, prayed that the “illegal and arbitrary appointment of Dr. Rajendra Ram as Lecturer Patna Dental College” should be quashed and that the petitioner should be appointed as Lecturer in place of Dr. Rajendra Ram on the same post. It was further indicated in this representation that if the petitioner did not receive any reply from the Government by the 25th March, 1968, he would assume that his claims have been rejected and that the Government was not willing to change its earlier decision and then he would seek “the redressal of my grievances in proper court of law.” It has been stated in Paragraph 26 of the writ application that the State Government did not make any response to the representation (Annexure “20”). Accordingly, the petitioner filed the present application in this Court on the 19th April, 1968. 19. The petitioner's case may now be set out: (i) The petitioner has been in the service of the Bihar Government since 1957 and has a cadre seniority of seven years over respondent no. 5 who entered the Bihar Health Service in April, 1964. The petitioner also possesses a superior post-graduate qualification. Yet his claim for appointment as Lecturer in the Dental College was ignored. And the representations (Annexures “2” and “3”) of the petitioner were kept pending and disposed of on 21.2.1967 (as per Annexure “4”) only when respondent no. 5 was expected to return from Bombay with the minimum postgraduate qualification simply with a view to favour him unduly by giving him the appointment. (ii) Respondent no. 5 was appointed in spite of the fact that he did not satisfy the criterion of minimum three years' teaching experience as laid down by the Dental Council of India. On 25.1.1968, he had teaching experience of only one year eleven months and twenty five days. (ii) Respondent no. 5 was appointed in spite of the fact that he did not satisfy the criterion of minimum three years' teaching experience as laid down by the Dental Council of India. On 25.1.1968, he had teaching experience of only one year eleven months and twenty five days. (iii) An artificial seniority of about 20 days in teaching experience was given to respondent no. 5 over the petitioner by refusing to count the petitioner's teaching experience during the Luknow period and by rejecting the petitioner's representation with regard to his teaching experience in the Supy. period. (iv) The shortage in the teaching experience of respondent no. 5 was condoned without making a reference to the Dental Council, and also his appointment was made without consultation with the Public Service Commission. (v) All his undue favour was shown to respondent no. 5 as his father Dr. Dukhan Ram commands influence in the public life of this State and was a close friend of Sri Mahamaya Prasad Sinha, the then Chief Minister, and on 25.1.1968, the United Front Government had fallen, the Chief Minister, Sri Mahamaya Prasad Sinha passed ORDER :appointing Dr. Rajendra Ram, opposite party no. 5 as temporary Lecturer in Patna Dental College and got the notification rushed through the intricate formalities on the same day, and opposite party no. 5 joined the Patna Dental College as a Lecturer on the strength of the ORDER :on the same day.” (vi) The ORDER :(Annexure “12”) rejecting the petitioner's representation in respect of his teaching experience during the Lucknow period “was passed malafide and illegally on the same date as the illegal ORDER :of appointment of opposite party no. 5 i.e., on 25.1.68 after the United Front Ministry was likely to fall.” The said ORDER :was passed for “unreasonably favouring opposite party no. 5, Dr. Rajendra Ram.” The said representation of the petitioner was rejected “only with a view to give a seniority of 20 days in teaching experience to Dr. Rajendra Ram and appoint him as a Lecturer at the cost of the claim of the petitioner who was mach senior in service and better qualified to him”. (vii) In various cases of Medical Officers in the past, the State Government had recognised the teaching experience inside and outside the State of Bihar in matters of promotion. Rajendra Ram and appoint him as a Lecturer at the cost of the claim of the petitioner who was mach senior in service and better qualified to him”. (vii) In various cases of Medical Officers in the past, the State Government had recognised the teaching experience inside and outside the State of Bihar in matters of promotion. But an illegal discrimination was made in the case of the petitioner “only with a view to favour Dr. Rajendra Ram.” (viii) It was with the same object that the petitioner's representation with respect to his teaching experience during the Supy. period was turned down. This was also malafide and discriminatory, inasmuch as in many other instances of medical men their Supy. duties were counted towards their teaching experience. (ix) Besides possessing all the requisite qualifications and teaching experience for the post of Lecturer, the petitioner is the seniormost man in service amongst the teaching staff in the Patna Dental Council (except the Principal, Prof. J. Chandra), and according to the well-established rule of the Health Department, seniority in cadre service has been the deciding factor in matter of promotion to the teaching posts; but this principle was not adhered to in the present instance and thereby an unmerited favour was shown to respondent no 5. (x) Two other persons also namely, Dr. R.P. Singh and Dr. P.N. Gupta who are junior to the petitioner in service were appointed as Lecturers on 18.5.1963 and 1.11.1964 respectively in clear violation of the practice and constitutional requirement of equal treatment of protecting the rights of senior in the service in matters of promotion. (xi) Thus, the impugned ORDER :contained in Annexure “9” is ultra vires of Section 20 of the Dentists Act, 1948, read with Regulation 8, besides being malafide and discriminatory, and in denial of equal opportunity to the petitioner in the matter of his promotion to the post of Lecturer in the Patna Dental College as envisaged in Articles 14 and 16 of the Constitution. 20. Substantially upon these averments the petitioner prayed in the writ application, as originally framed, that this Court should “issue appropriate writ or ORDER :quashing the ORDER :contained in Annexures 9, 12 and 18 and further issue a writ in the nature of writ of mandamus directing opposite party no. 20. Substantially upon these averments the petitioner prayed in the writ application, as originally framed, that this Court should “issue appropriate writ or ORDER :quashing the ORDER :contained in Annexures 9, 12 and 18 and further issue a writ in the nature of writ of mandamus directing opposite party no. 1 to make appointment to the post of Lecturer in the Patna Dental College according to law and further recognise the teaching experience of the petitioner acquired during the period 15.11.55 to 31.7.56 at Lucknow (Sic) where he worked as Honorary Demonstrator in the Lucknow Dental College and during the period 19.11.65 to 20.2.66 when he worked on supernumerary duty in the Patna Dental College”. The petitioner had also made a prayer to direct the State Government not to fill up the post of Lecturer which was vacant in the Patna Dental College till the disposal of the writ application. But at the time of admission of this application on the 23rd April, 1968, it was conceded on behalf of the petitioner that his prayer for stay need not be considered now. 21. In the amendment petition which was filed on the 18th July, 1968, the petitioner suggested that his prayer for interim stay of the appointment to the substantive post of Lecturer was still pending, and yet the Government “malafide in ORDER :to oblige Dr. Dukhan Ram, appointed his son Dr. Rajendra Ram just before the fall of the Ministry on the 25th June, 1968, and the said Dr. Rajendra Ram was also put in the post on the same date”. According to the petitioner, to this appointment was made due to the “immense influence” of respondent no. 5's father, in promoting Dr. R.P. Singh to the post of a Professor with retrospective effect only with a view to make room for respondent no. 5, though, in fact, there was no vacancy in the substantive post of Lecturer on the 25th January, 1968. Paragraphs 8 and & 9 of the amendment petition are in the following terms : “8. That the aforesaid ORDER :of substantive appointment of opposite party no. 5 is ultra vires, void, illegal and mala fide for similar (Sic) as those of his temporary appointment as described in the writ petition. 9. Paragraphs 8 and & 9 of the amendment petition are in the following terms : “8. That the aforesaid ORDER :of substantive appointment of opposite party no. 5 is ultra vires, void, illegal and mala fide for similar (Sic) as those of his temporary appointment as described in the writ petition. 9. That the aforesaid ORDER :of substantive appointment is also bad as the Government had no authority to pass retrospective ORDER :s.” The petitioner has, therefore, prayed that the Government ORDER :contained in Annexure “22” should also be quashed. 22 In its counter affidavit, the State of Bihar (respondent no. 1) has denied all the allegations of favouritism and discrimination levelled against it by the petitioner. It has denied that the claim of the petitioner was ignored. It has been pointed out that at the time when Dr. D. P. Singh and Dr. P.N. Gupta were appointed, the petitioner did not have any teaching experience. With regard to the post graduate degree, it has been stated that the Fellowship of Dental Surgery of the Royal College of Surgeons, which the petitioner holds, was to be treated on the same level as the M.D.S. degree in Dentistry which Dr. Ram possesses, for the purposes of promotion to the post of Lecturer. With regard to the petitioner's cadre seniority, the stand of respondent no. 1 is that this is not taken as the basis for appointment to a teaching post, and what is relevant is the seniority determined on the basis of length of recognised teaching experience. Cadre Seniority would prevail only as between officers having equal teaching experience, and a decision to this effect was taken as far back as in 1954. With regard to the representations of the petitioner contained in Annexures “2” and “3”, it has been stated that in 1966 or early 1967, there was no post vacant against which the petitioner's case could be considered, and when subsequently the post fell vacant, the petitioner's case “was definitely considered” along with that of Dr. Ram. In Paragraph 10 of the counter-affidavit, it has been stated that out of three junior teachers of the Dental College, namely. Dr. Ram, Dr. Srivastava and Dr. N. Lal possessing postgraduate qualification in Dentistry, Government appointed Dr. Ram (respondent no. Ram. In Paragraph 10 of the counter-affidavit, it has been stated that out of three junior teachers of the Dental College, namely. Dr. Ram, Dr. Srivastava and Dr. N. Lal possessing postgraduate qualification in Dentistry, Government appointed Dr. Ram (respondent no. 5) as Lecturer “as he was most suitable and fit person; moreover he possesses the longest teaching experience in comparison to the other two teachers”. It has further been stated there that the Government condoned the shortage of Dr. Ram's teaching experience, a power which the Government had been exercising while making appointments of Lecturers and Professors, ever since the establishment of the Dental College. With regard to the Regulation of the Dental Council of India, relied upon by the petitioner, the case of the State of Bihar (respondent no.1) is that it is only recommendatory and not mandatory. The Government, however, keep the said recommendations in view while dealing with cases of appointments and promotions in the Dental College. Regarding the insinuations made by the petitioner that promotion' of respondent no. 5 was made on extraneous considerations, it has been stated in Paragraph 13 of the counter-affidavit that they are totally; unfounded; that the ORDER :of the then Chief Minister was passed on 24.1.1968, and not on 25.1.1968, as alleged by the petitioner, and that it was passed in the usual course, since, the question of filling up the post of Lecturer was under consideration of the Government since about three months before. With regard to the petitioner's teaching experience during the Lucknow period, it has been stated in Paragraph 17 of the counter-affidavit that an honorary teaching experience of this nature has not been recognised by the Government at any earlier stage and that “the Government do not consider the Hony. Service of Medical Officers working in State Hospital for the above post unless and until they complete one year of service in State Health Service.” With regard to the petitioner's claim of teaching experience during the Supy. period, it has been clarified in Paragraph 18 of the counter-affidavit that prior to receiving his posting ORDER :, which was passed on the 5th February, 1966, the petitioner did not work at or attend the Dental College. During the Supy. period he was merely on compulsory waiting list for his posting. period, it has been clarified in Paragraph 18 of the counter-affidavit that prior to receiving his posting ORDER :, which was passed on the 5th February, 1966, the petitioner did not work at or attend the Dental College. During the Supy. period he was merely on compulsory waiting list for his posting. His automatic posting in the Dental College did not arise as he was not a teacher before he proceeded on study leave Ex-India. It was only with a view to regularise his Pay and allowance that he was shown on Supy. duty at the Dental College. All the various instances cited by the petitioner with a view to show that his case was dealt with by making a departure from the normal practice have been shown to stand on an entirely different footing. In Paragraph 22 of the counter-affidavit, a chart has been appended showing the respective qualifications and other service details of the petitioner and respondent no. 5 with a view to show that Dr. Ram has got more teaching experience than the petitioner. In a rejoinder to the amendment petition, the retrospective substantive appointment of Dr. Ram has been defended as having been made after full consideration of the propriety and desirability of making such appointment. 23. In his show cause petition, respondent no. 5 also has refuted all the attach made against his appointment to the post of Lecturer. He has denied that any favouritism was Shown to him. He has further taken the plea that the petitioner has no justiciable right which can be enforced by invoking the writ jurisdiction of this Court. In Paragraph 3 of his show cause, respondent no. 5 has asserted that the qualification laid down by the Dental Council for the teachers in Dental Colleges have no statutory force. Respondent no.5 has also maintained that his teaching experience was longer than that of the petitioner. 24. Before entering into the merits of the case I propose to make a few clarification, First, we must be clear as to what kind of writ the petitioner can ask us to issue in this case. Respondent no.5 has also maintained that his teaching experience was longer than that of the petitioner. 24. Before entering into the merits of the case I propose to make a few clarification, First, we must be clear as to what kind of writ the petitioner can ask us to issue in this case. It will be noticed that all the ORDER :s of the State Government which are being assailed before us are administrative or executive ORDER :s. So there can be no question of issuing a writ of certiorari in this case, because a certiorari lies only where the impugned ORDER :is of a judicial or quasi-judicial nature. 25. From the language employed at some places in the writ application, particularly in Paragraph 8 of the amendment petition (extracted above) it would seem as if the petitioner is praying for issue of a writ of quo warranto. But Mr. K.D. Chatterji appearing for the petitioner has made it clear that his client is not asking for a writ of this kind. 26. So the only writ which we can reasonably think of issuing in this case would be a writ of mandamus. A mandamus may issue to compel a public body or a public authority to perform a statutory duty or to direct it to act in accordance with some mandatory provision or rule of law. Mandamus may also issue to strike down an administrative action which has been performed in violation of mandatory provision of law or in malafide or colourable exercise of power or in an irrational or capricious manner. But mandamus will not issue unless in the performance of the particular statutory of administrative duty, the person applying to the Court for the writ has some personal or sufficient legal interest which has been jeopardised or adversely affected for no rational or valid ground. 27. Therefore, to succeed in this proceeding the petitioner must establish, in the first place, that the appointment of respondent no. 5 is void or invalid; and secondly, that the petitioner had a legal right to the post and that right was denied to him by reason of breach of some mandatory provision of rule of law or on account of malafide exercise of executive power on the part of the appointing authority. It is manifest that unless respondent no. 5 is void or invalid; and secondly, that the petitioner had a legal right to the post and that right was denied to him by reason of breach of some mandatory provision of rule of law or on account of malafide exercise of executive power on the part of the appointing authority. It is manifest that unless respondent no. 5 is dislodged from the post to which he has been appointed under the impugned ORDER :contained in Annexures “9” and “22”, no relief can be granted to the petitioner. 28. Turning to the petitioner's case, it will be seen that some of the attacks against the appointment of respondent no. 5 are founded on purely legal grounds One such ground is that the appointment was made without consulting the Public Service Commission as to his suitability, and reliance has been placed upon Clause (3) (b) of Article 320 of the Constitution read with Rule 7 of the Bihar Service Code, Part V. But it is now well-settled that the requirement as to consultation with the Public Service Commission is not mandatory; that the omission or failure to consult the Commission cannot invalidate an appointment; and that it affords no cause of action to anyone interested in the appointment: Vide (1) State of U.P.V. Manbodhan Lal Srivastava (A.I.R. 1957 Supreme Court 912 at 916-17) and (2) Ram Gopal Chaturvedi V. State of Madhya Pradesh (A.I.R. 1970 Supreme Court 158 at 160). I may also state that it has not been alleged, far less shown; that the State Government had consulted the Public Service Commission on any previous occasion of making appointments on the staff of the Dental College so that a charge of discrimination might be sustained on the footing that this was the first occasion when an appointment was made without consulting the Public Service Commission. This ground, therefore, has no merit. 29. Another ground of attack is that respondent no. 5 did not possess the requisite qualification for appointment to the pest of a Lecturer inasmuch as he did not have the minimum teaching experience of three years and the deficiency in this regard could have been condoned only by the Dental Council of India and not by the State Government. 29. Another ground of attack is that respondent no. 5 did not possess the requisite qualification for appointment to the pest of a Lecturer inasmuch as he did not have the minimum teaching experience of three years and the deficiency in this regard could have been condoned only by the Dental Council of India and not by the State Government. This ground can have validity if the cited Regulations of the Dental Council of India are of mandatory character as urged by the petitioner, and not merely recommendatory as urged by both the answering respondents. Let us, then examine the true character of the Regulations. It will be noticed that the regulations expressly say that they are in the nature of recommendations. But that alone may not be decisive of their true character, because a provision may be designed to be mandatory even though couched in the form of recommendation. For determining the true character of a particular provision, it is necessary to look at it in the context of the entire legislative scheme of which it forms a part. 30. That takes us to the Dentists Act, 1948, which, as its short title as well as its preamble shows, has been enacted with object of regulating and making provision for regulation of the profession of dentistry. An examination of the different provisions of the Act shows that to achieve this objective the Act aims at laying down a standard of education and training for those who desire to take to the practice of dentistry and to put a restriction upon such practice on the part of persons who do not possess a recognised proficiency in the science of dentistry. The duty of laying down the standard of education and training has been assigned to the Dental Council of India and provision has also been made for the maintenance of a register of dentists possessing the recognised dental qualification. The duty of maintaining such a register in every State has been assigned to the State Dental Council concerned, and on the basis of the State Registers, an Indian Dentists Register has to be maintained by the Dental Council of India. Naturally the State Dental Councils have to act in collaboration With the Dental Council of India so that some uniform standard may be achieved in respect of registered dental practitioners all over the country. Naturally the State Dental Councils have to act in collaboration With the Dental Council of India so that some uniform standard may be achieved in respect of registered dental practitioners all over the country. However, it is inevitable that the standard of dental education and training would vary from State to State, and may be in the same State from institution and institution. So the Dental Council of India has framed the Regulation in question to serve as a guideline for all States and institutions so that they may be able to conform to certain minimum standards in imparting dental education and training to persons who wish to qualify for the practice of dentistry. Neither in the Act nor in the Regulation has any Penal consequence been laid down for dealing with a contingency of the minimum standards being not adhered to in a particular institution. The reason is that every Dental College in its own larger interest must depend upon not merely to follow the minimum teaching standards but even to rise to higher standards so that it might attract students of good calibre. For dealing with a case where the courses of study and training or the examinations to be undergone in ORDER :to obtain a recognized dental qualification from any authority in a State are not in conformity with the Regulations or fall short of the standards laid down therein or where an institution does not satisfy the requirements of the Dental Council the only provision is to be found in Section 16 of the Act which is in the following terms,: “16. Withdrawal of recognition(1) When upon report by the executive committee it appears to the Council(a) that the courses of study and training or the examinations to be undergone in ORDER :to obtain a recognised dental or dental hygiene qualification from any authority in a State or the conditions for admission to such required courses or the standards of proficiency from the candidates at such examinations are not in conformity with regulations made under this Act or fall short of the standards required thereby, or (b) that an institution does not satisfy the requirements of the Council, the Council may send to the Government of the State in which the authority or institution is situated a statement to such effect and the State Government shall forward it along with such remarks as it may think fit, to the authority or institution concerned with an intimation of the period within which the authority or institution may submit its explanation to the State Government. (2) On receipt of the explanation, or where no explanation is submitted within the period fixed, then on the expiry of the period, the State Government shall after consulting the State Council, forward its recommendations and those of the State Council, if any to the Council. (3) The Council, after considering the recommendations of the State Government and the State Council and after such further inquiry, if any, as it may think fit to make, may declare that the qualification granted by the authority or institution shall be a recognised dental or dental hygiene qualification only when granted before a specified date. (4) The Council may declare that any recognised dental or dental hygiene qualification granted outside the State shall be recognised as such only if granted before a specified date.” That being so, I have no doubt in my mind that the Regulation in question is not mandatory but recommendatory not only' in form but also in effect, because no action is contemplated to become illegal or invalid merely on the score of its not being in strict conformity with its provisions. Suppose, for example, that as against the minimum number of eight Assistant Professors/Readers/Senior-Lecturers laid down in the Regulation, only 5 or 6 such persons are appointed on the staff of a Dental College. Suppose, for example, that as against the minimum number of eight Assistant Professors/Readers/Senior-Lecturers laid down in the Regulation, only 5 or 6 such persons are appointed on the staff of a Dental College. Can it be suggested with any show of reason that the Dental Degrees awarded by such an institution would become invalid or that the appointment of all those 5 or 6 Assistant Professors/Readers/Senior-Lecturers would be rendered void or invalid by reason of noncompliance with this provision of the Regulation? Quite clearly, not. Therefore it is difficult to strike down the petitioner's appointment to the post of a Lecturer on the mere ground that he did not possess teaching experience of the requisite number of three years and the Dental Council was not called upon to condone the deficiency in this respect. 31. In course of his arguments the learned Advocate-General put forward the contention that the Regulation in question had necessarily to be made recommendatory or directory, otherwise it might be liable to be struck down as void or unconstitutional having regard to the distribution of legislative powers as between the Central Legislature or the Union Parliament on the one hand and the Provincial or the State Legislatures on the other. It is pointed out that both in the Constitution Act of 1935 and in the present Constitution, the subject “Education” has been included in the State Legislative list, and it is urged that the Regulation which has been framed in consultation with the State Governments is not expected to contain any provision which might trench upon the exclusive legislative field of the Provincial or the State Legislatures, or to curtail the discretion of the State Government in making appointments as it thinks proper or expedient. This argument was rebutted by Mr. Chatterji who contended that no such question as to the unconstitutionality of the Regulation could arise. But I do not feel called upon to express any concluded opinion on this point, because even without going into this question I am fully convince d that the competency of the State Government to condone the deficiency in the teaching experience of respondent no. 5 has not been taken away by the Regulation. For the various reasons given above I hold that the appointment of respondent no. 5 is not void or invalid for want of condonation of this teaching experience by the Dental Council of India. 32. 5 has not been taken away by the Regulation. For the various reasons given above I hold that the appointment of respondent no. 5 is not void or invalid for want of condonation of this teaching experience by the Dental Council of India. 32. This, however, must not be taken as suggesting that the State Government was free to disregard the Regulations altogether Nor is this the attitude of the Government, which has been made clear in Paragraph 12 of its counter-affidavit, where after stating the legal position correctly, namely that the Regulations are only recommendatory, it has been stated : “The Government, however, keeps the aforesaid recommendations in considerations in respect of appointment and promotion in the Dental College.” Therefore, in appropriate cases the Government is at liberty to make a reference to the Dental Council. But the omission to adopt this course in a particular case cannot render its action void or the appointment invalid. 33. It is significant to note that at no time until filing the present writ application did the petitioner challenge the power of the State Government to itself condone the shortage in three years' training experience in making appointments to the post of Lecturers in the Dental College. In fact, in one of his earliest representations (Annexure “3”), the petitioner had conceded this power of the State Government by pointing out that deficiency in the prescribed period of teaching experience had in the past 'been actually condoned by the Government on the matter of appointment of Lecturer in Dental College, Patna”. Therefore, upon the petitioner's own showing the State Government had not exercised its own discretion in the matter of condonation for the first time on the occasion of respondent no. 5's appointment. The fact that respondent no. 1 had consistently exercised this power (except on one occasion) shows that no favouritism was showed to respondent no. 5 in this respect. It may further be noted that even after receipt of the Government ORDER :contained in Annexure 4”, the petitioner never requested the authorities that the matter should be referred to the Dental Council of India. 34. Mr. Chatterji has, however, urged that even though the Regulation in question may not be mandatory, yet the State Government was precluded from making the appointment on the staff of the Dental College except in strict conformity therewith. In support of this contention Mr. 34. Mr. Chatterji has, however, urged that even though the Regulation in question may not be mandatory, yet the State Government was precluded from making the appointment on the staff of the Dental College except in strict conformity therewith. In support of this contention Mr. Chatterji has relied upon the State's counter-affidavit dated the 25th February, 1970 in Paragraph 3 of which it has been stated that:- “.... the Government had decided on 4.11.ss in file No. II A3-20124-64 - that in future no relaxation should be made in the criteria laid down by the Dental Council of India in matters of academic qualifications and experience and all appointments should be made strictly according to the criteria of the Dental Council of India....” That being the declared policy of the Government, says Mr. Chatterji, it was not open to the State Government to maintain that it was not bound to refer the matter to the Dental Council of India for condonation of the shortage in respondent no. 5's teaching experience. But even though a decision to this effect was taken by the Government in November 1966, there was nothing to prevent it from changing its policy. In fact, it appears from Paragraph 4 of the same counter-affidavit that : “after the aforesaid decision Dr. J. Chandra was appointed to the post of Principal, Dental College, Patna after relaxing the teaching experience of 10 years as laid down by Dental Council of India as this was a new institution and no suitable candidate was available.” The affidavit in reply filed by respondent no. 5 on the 27th January, 1970, read with Annexure “H” appended thereto shows that Dr. J. Chandra was appointed as Principal of the College on the 2nd July, 1967 before he had completed a term of five years as a Professor. In other words, it was not for the first time after the 4th November, 1966, while making the appointment of respondent no. 5 as a Lecturer in the College that the State Government had thought fit, in its discretion, to depart from its aforesaid policy decision. Therefore, the appointment of respondent no. 5 cannot be held to have been made illegally or arbitrarily on this score 35. The substantive appointment of respondent no. 5 under the Government ORDER :contained in Annexure “22” has been assailed on three grounds. Therefore, the appointment of respondent no. 5 cannot be held to have been made illegally or arbitrarily on this score 35. The substantive appointment of respondent no. 5 under the Government ORDER :contained in Annexure “22” has been assailed on three grounds. One is that the Government had no authority to make such an appointment with retrospective effect. But nothing has been shown to us to substantiate this proposition. In fact, it is usual to come across cases where promotions of officers are notified as effective from a retrospective date. In my opinion, it is entirely the prerogative of the Government to make appointments and promotion from prospective or retrospective effect. This contention of the petitioner is, therefore, entirely without substance. 36. Next, it has been alleged that the substantive appointment of respondent no. 5 was made while the petitioner's prayer for an ORDER :of stay was still pending before this Hon'ble Court”. The fact is, as the Court's ORDER :sheet shows, that on 23.4.1968 at the time when this application was put up for admission and admitted, counsel of the petitioner himself stated that the prayer for stay “need not be considered now”. In other words, the petitioner took a chance and did not press for an ORDER :of stay. Nor was an ORDER :of stay passed. From the fact, therefore, that the petitioner chose keep his stay application pending in a fluid stage, cannot be maintained that the State Government was under any obligation to keep the question of filling up the substantive vacancy pending for an indefinite period. This contention of the petitioner is also without force. 37. The third ground really constitutes plea of mala fide and that has been sufficiently set out in Paragraphs 19 and 21 (supra). It will be convenient to deal with it in the context of several other averments which the petitioner has made with a view to show that he was unfairly treated and favouritism was shown to respondent no. 5. A perusal of the writ application gives the impression that right from May 1963, when Dr. R.P. Singh was appointed a Lecturer, down to May, 1968, when the impugned ORDER :(Annexure “22”) was passed, the authorities had passed various ORDER :s with a view to prejudice the petitioner's just claim to the post and for showing undue favour to respondent No. 5. 38. R.P. Singh was appointed a Lecturer, down to May, 1968, when the impugned ORDER :(Annexure “22”) was passed, the authorities had passed various ORDER :s with a view to prejudice the petitioner's just claim to the post and for showing undue favour to respondent No. 5. 38. Before embarking upon an investigation of this aspect of the petitioners case, however, I ought to dispose of an objection raised by Mr. J. C. Sinha to the effect that the petitioner has no locus standi to maintain this application as he had no legal right to be appointed to the post. Mr. Sinha has urged that the petitioner did not possess the minimum teaching experience of three years and he had no legal right of condonation of the deficiency in this regard. It is true that the petitioner could not ask for condonation of the deficiency of his teaching experience as of right and that he did not have a legal right to be appointed as a Lecturer. But it was admittedly a question of promotion and the petitioner can urge that he was entitled to a due consideration of his case, which was denied to him. He can show to the Court that his case did not receive consideration or honest consideration of the appointing authority and so this was really a case of non- consideration of the relevant factors in dealing with the question of promotion. Whether he will ultimately succeed in establishing his case in this regard or not is a different matter, but, in my opinion, he can certainly ask the Court to consider whether or not he had any just claim to be considered or whether there was real or a mere pretence of consideration of his case. Maintainability depends upon the averments and not the ultimate decision in the case. I do not think therefore, that Mr. J.C. Sinha is right in urging that the petitioner has no locus standi to maintain this application. I would, therefore, overrule this objection and proceed to deal with the petitioner's allegation of malafide on merits. 39. The starting point of the petitioners's case about malafide is the appointments of Dr. R.P. Singh, and Dr. P.N. Gupta as Lecturers, though both of them were junior to the petitioner in the service cadre. So was respondent no. 5 who was appointed as a Tutor earlier than the petitioner. 39. The starting point of the petitioners's case about malafide is the appointments of Dr. R.P. Singh, and Dr. P.N. Gupta as Lecturers, though both of them were junior to the petitioner in the service cadre. So was respondent no. 5 who was appointed as a Tutor earlier than the petitioner. So far as the appointments of Dr. R.P. Singh and Dr. P.N. Gupta are concerned, I fail to see how this could have any bearing upon the subsequent selection of respondent no. 5 or the non selection of the petitioner. Both these appointments were made at a time when neither the petitioner nor respondent no. 5 had obtained any post graduate qualification. It is impossible to imagine that these two appointments were made with any ulterior motive of jeopardising the further prospects of the petitioner. The grievance of the petitioner on this score is wholly beside the point. 40. The appointment of respondent no. 5 as a Tutor was also made long before the petitioner had obtained a post graduate qualification. Certainly this appointment also could not have been made with the idea of showing favouritism to him on a later occasion. The appointing authority could never have then imagined that respondent no.5 would obtain a post-graduate degree so as to be eligible for being promoted as a Lecturer after several years. It cannot legitimately be suggested that all teaching posts in the Dental College should have been kept unfilled until such time a the petitioner returned from the United Kingdom with or without a post-graduate qualification. The supposed grievance of the petitioner on this score is also without merit. 41. After the petitioner returned to India with a degree or diploma of F.D.S.R.C.S. (Edin), there was no doubt a delay of 2 months and 18 days in notifying his posting as a Tutor and a further delay of about 13 days in handing over charge of that post to him. This may reflect against the efficiency of the administrative machinery of the Government. But it is difficult to attribute any dishonest motive to the appointing authorities on this score. By the 5th or the 21st February, 1966, respondent no. 5 had not obtained a post-graduate qualification. There was no assurance then that he would be able to obtain a Master's degree in Dentistry. But it is difficult to attribute any dishonest motive to the appointing authorities on this score. By the 5th or the 21st February, 1966, respondent no. 5 had not obtained a post-graduate qualification. There was no assurance then that he would be able to obtain a Master's degree in Dentistry. So the authorities could not have acted in this matter in contemplation of jeopardisng the future prospects of the petitioner or of showing favour to respondent no. 5. If there would have been any such design in the mind of the appointing authority, then the petitioner would have found himself posted again as a Dental Surgeon in a Mofassil hospital instead of being attached to the Dental College as a Tutor, even upon his return from the United Kingdcm with a postgraduate qualification. Quite clearly. therefore, nothing that happened until the 21st February, 1966, can be indicative of malafide on the part of the appointing authority or of the State Government. 42. The next relevant event was the rejection of the two representations (Annexures “2” and “3”) of the petitioner by the ORDER :(Annexure “4”) dated the 21st February, 1967. This also happened more than two months before respondent no. 5 obtained his M.D.S. degree from Bombay University. The petitioner has, however, alleged that his representations (Annexures “2” and “3”) were deliberately kept pending until the 21st February, 1967. as by that time it was expected that respondent no. 5 would return from Bombay with a post-graduate qualification and subsequently the appointment of respondent no. 5 was made by disregarding the petitioner's cadre seniority as well as his superior postgraduate qualification. But this insinuation of the petitioner is obviously fanciful. It is difficult to see how by the 21st February, 1967, the authorities could have known that respondent no. 5 would succeed in obtaining his postgraduate degree; which he did in April, 1967, so as to act upon such a supposition. Had there been any truth in this insinuation, then after his return from Bombay on the 12th May, 1967, respondent no. 5 would not have had to wait until the 25th January, 1968, for being promoted to the post of a Lecturer. The true fact is that prior to the 4th August, 1967, when Dr. R.P. Singh was promoted to the rank of a Professor, and the 3rd October, 1967, when Dr. 5 would not have had to wait until the 25th January, 1968, for being promoted to the post of a Lecturer. The true fact is that prior to the 4th August, 1967, when Dr. R.P. Singh was promoted to the rank of a Professor, and the 3rd October, 1967, when Dr. P. N. Gupta proceeded on leave, there was no post of Lecturer vacant to which the petitioner could have been appointed. Had the representations (Annexures “2” and “3” ) of the petitioner been kept pending with a view to show undue favour to respondent no. 5, as is sought to be suggested, then the appointment of respondent no. 5 as a Lecturer would have been made immediately when Dr. R.P. Singh was promoted to the post of Professor or immediately. when Dr. P.N. Gupta had proceeded on leave. No delay of 5 or 3 months in making the appointment of respondent no. 5 as a Lecturer, even after the post of one or two Lecturers had fallen vacant, was then likely to have been made. In my opinion, the suggestion that the ORDER :upon the petitioner's representations was purposely delayed is too far- fetched to be taken seriously. 43. So we come to the most crucial date in the history of this case, namely the 25th January, 1968, on which the notification (Annexure 19”) relating to the temporary appointment of respondent no. 5 as Lecturer was issued and the ORDER :(Annexure “2”) rejecting the petitioner's representation for counting the Lucknow period towards his teaching experience was passed. For dealing with the petitioner's case on the point of malafide, it must be remembered that this was also the date on which respondent no. 5 assumed charge of his new post, and United Front Ministry of Shri Mahamaya Prasad Sinha, said to be an intimate friend of Dr. Dukhan Ram, the father of respondent no. 5, had fallen. The petitioner's plea on this aspect of his case has already been set out above. But the initial difficulty in accepting this plea of mala fide is that Shri Mahamaya Prasad Sinha has not been impleaded as a party to this proceeding and the Court is asked to investigate a serious allegation against him behind his back, which I think would be highly unfair. In my opinion, this part of the petitioner's case is liable to be thrown out on this ground alone. In my opinion, this part of the petitioner's case is liable to be thrown out on this ground alone. Assuming that the Court would be justified in going into this plea of favouritism, it has first to be seen when exactly the ORDER :of the Chief Minister for the promotion of respondent no. 5 was passed. At one place in the writ application (paragraph 16) it has been alleged that it was passed on the 25th January, 1968, although the Ministry of Shri Mahamaya Prasad Sinha had fallen. At another place (paragraph 20) it has been alleged that it was passed on 25.2.1968 “after the United Front Ministry was likely to fall.” That shows that the petitioner was not sure about the correct position, though he claims to have made these statements from his personal knowledge (vide, his affidavit in support of the writ application). As against this, the categorical statement in the State's counter-affidavit is that the Chief Minister had passed the ORDER :on 24.1.1968 and that this was done after due consideration at different levels and in discharge of the usual course of official duties. Evidently, the petitioner could not have any personal knowledge about this matter, unless he had personally seen Shri Mahamaya Prasad Sinha recording his ORDER :which the petitioner does not claim to have done. It appears that after the aforesaid statement was made on behalf of the State, the petitioner filed an application for an ORDER :calling upon the State to produce before it the relevant file all the 18th September, 1970, that application was ORDER :ed to be put up for consideration at the time of hearing of the writ application. But at the time of the hearing before us, the said application was not pressed and so it must stand rejected. It was, however, argued that the State should have produced the relevant files suo motu. But in the circumstances of this case I do not think that any such duty lay upon the State. Upon the materials on the record I must hold that Shri Mahamaya Prasad Sinha had passed his ORDER :on 24.1.1968 and that there is no substance in the insinuation made by the petitioner that he had done so on 25.1.1968 when his ministry had fallen or was likely to fall. 44. Upon the materials on the record I must hold that Shri Mahamaya Prasad Sinha had passed his ORDER :on 24.1.1968 and that there is no substance in the insinuation made by the petitioner that he had done so on 25.1.1968 when his ministry had fallen or was likely to fall. 44. Another question which arises for consideration is, could Shri Mahamaya Prasad Sinha have been in a position to pass his ORDER :in hot haste on the eve of the fall of his ministry with a view to show undue favour to his friend Dr. Dukhan Ram's son. It is well known that a proposal for the promotion of an officer does not emanate directly at the level of the Chief Minister's office. Rather it reaches his office after detailed examination at various lower levels and that naturally takes considerable time. So that file containing the proposal for respondent no. 5's promotion must have started some three months earlier as stated on behalf of the State. It is not the petitioner's case that Shri Mahamaya Prasad Sinha had passed the ORDER :for promotion of respondent no.5 despite the recommendations of the departmental heads to the contrary. It is manifest that in that case the temporary promotion of respondent no. 5 would not have been followed by an ORDER :(Annexure “22”) of his substantive promotion by a succeeding Chief Minister belonging to a different political party. So it is apparent that Shri Mahamaya Prasad Sinha had only approved of the recommendations of the departmental heads for the promotion of respondent no. 5. Therefore, he had not gone out of his way to show any undue favour to respondent no. 5, unless all the concerned officials of the State Government were in league with the Chief Minister for assisting him in his dishonest objective, a contingency which is highly improbable, besides being hypothetical. I have, therefore, no doubt in my mind that there is no truth in the petitioner's case that Shri Mahamaya Prasad Sinha had passed a dishonest ORDER :for the promotion of respondent no. 5 with a view to show undue favouritism to him. For similar consideration I feel convinced that no malafide attaches to the ORDER :of the succeeding Ministry for the substantive promotion of respondent no. 5 to the rank of a Lecturer. 45. According to Mr. 5 with a view to show undue favouritism to him. For similar consideration I feel convinced that no malafide attaches to the ORDER :of the succeeding Ministry for the substantive promotion of respondent no. 5 to the rank of a Lecturer. 45. According to Mr. Chatterji, this conclusion does not account for the “hot haste” with which the notification (Annexure “9”) was issued and made available both to the Principal of the Dental College and to respondent no. 5, whereby respondent no. 5 was in a position to take over as a Lecturer On 25.1.1968 itself, and that must be taken as a circumstance in support of the petitioner's case on the point of malafide. It has got to be recognised that of late the governmental machinery in our State has become so slow-moving that if in any particular instance expeditious action is taken then the people are left wondering how this was possible and start suspecting that something wrong must be in the matter. Otherwise, expedition is the normal way of public business and no suspicion can legitimately arise on this account. In this particular case, after the final ORDER :of the Chief Minister was passed on the 24th January, 1968, it was but natural that the' notification (Annexure “9”) should have been drawn up and issued on the next following day. It is common knowledge that the requisite numbers of the copies of a notification are simultaneously prepared for being despatched to the officers and the offices concerned. It is also common knowledge that very often the officers concerned arrange for collecting their copy of the notification concerning them through their own agency. I do not think that I would be justified in suspecting any evil design from the circumstance upon which learned counsel has relied. The “hot haste” to which Mr. Chatterji has “If referred was displayed after the final decision for the promotion of respondent no. 5 and already been taken and that can at best be attributed to the dealing assistants who quite clearly could have no hand in the making of the decision itself. It is impossible, in my opinion, to take this as a circumstance pointing to the malafide of the appointing authority. The entire challenge to the impugned ORDER :s on the ground of favouritism for respondent no. 5 which /the petitioner has put forward must, accordingly, fail. 46. It is impossible, in my opinion, to take this as a circumstance pointing to the malafide of the appointing authority. The entire challenge to the impugned ORDER :s on the ground of favouritism for respondent no. 5 which /the petitioner has put forward must, accordingly, fail. 46. I now turn to another branch of the petitioner's case, namely, that the decision to promote respondent no. 5 in preference to the petitioner was taken without consideration of all the relevant factors and in an arbitrary fashion. It is urged that this being a case of promotion it was incumbent upon the authorities to pay due regard to the petitioner's (i) cadre seniority, (ii) superior post-graduate qualification and (iii) longer teaching experience; but the first of these two factors were totally ignored and the length of the petitioner's teaching experience was arbitrarily watered down. But it is difficult to hold that the petitioner's seniority or his post-graduate qualification were totally ignored. We have seen that in his various representations to the Government, the petitioner had repeatedly drawn the attention of the authorities to both these aspects of his claim of being appointed as a Lecturer and it is, therefore, apparent that the decision to appoint respondent no. 5 in preference to the petitioner was taken in January, 1968, not in ignorance but with full knowledge of the petitioner's cadre seniority and his post-graduate qualification. 47. Mr. Chatterji, however, urged that in paragraph 20 of its counter affidavit the State itself has admitted that it was only because of respondent no. 5's teaching experience, which was considered to be the longest among the junior teachers possessing post-graduate qualification that he was chosen for promotion. The passage upon which Mr. Chatterji relied reads: “As stated earlier Dr. R. Ram was posted as Lecturer only because he has the longest teaching experience among the junior teachers who possessed postgraduate qualification”. Stress was laid upon the word “only” in the above passage. But this passage cannot be read in isolation. It must be read in the context of other relevant averments in the counter-affidavit. One of them is in paragraph 10 which reads: “That three junior teachers of Dental College, i.e. Dr. R. Ram, Dr. C.M. Srivastava and Dr. N. Lal possess postgraduate qualification in Dentistry. Government, however, appointed Dr. But this passage cannot be read in isolation. It must be read in the context of other relevant averments in the counter-affidavit. One of them is in paragraph 10 which reads: “That three junior teachers of Dental College, i.e. Dr. R. Ram, Dr. C.M. Srivastava and Dr. N. Lal possess postgraduate qualification in Dentistry. Government, however, appointed Dr. R. Ram as a Lecturer as he was most suitable and fit person; moreover he possessed the longest teaching experience in comparison to the other teachers........” Another is in paragraph 11 : “That although Dr. R. Ram is junior to Dr. C.M. Srivastava service but he possesses longer teaching experience than the petitioner. The seniority in teaching line is determined on the length of teaching experience and not on basis of length of service and as such Dr. R. Ram is senior to Dr. C. M. Srivastava so far as teaching experience is concerned....” The same thing has been repeated in paragraph 14 and ultimately in paragraph 20 that “seniority in cadre will prevail only between officers having equal teaching experience”. It is in this context that the passage in paragraph 20 upon which Mr. Chatterji relied occurs. Reading the counter-affidavits, as a whole, I am unable to accept the contention of Mr. Chatterji, and I feel satisfied that the decision to promote respondent no.5 was taken after taking all relevant factors into consideration. 48. The petitioner has sought to assail the stand taken by Government that cadre seniority does not determine the seniority for the purpose of promotion on the teaching side and in paragraph 22 of the writ application he has referred to certain precedents in the Bihar Medical Service where appointments to teaching posts had been made on the basis of cadre seniority. It has been pointed out that when Dr. T.N. Banerji retired, Dr. S.K.G. Dastidar was appointed as Professor of Medicine in preference to Dr. S.M. Ghosal, although Dr. Ghosal had a longer teaching experience. On the same principle Dr. T.B. Gupta was appointed as Professor earlier than Dr. M. Mohsin on account of his cadre seniority. It has been pointed out that when Dr. T.N. Banerji retired, Dr. S.K.G. Dastidar was appointed as Professor of Medicine in preference to Dr. S.M. Ghosal, although Dr. Ghosal had a longer teaching experience. On the same principle Dr. T.B. Gupta was appointed as Professor earlier than Dr. M. Mohsin on account of his cadre seniority. On this point the answer of the State as contained in paragraph 20 of its counter-affidavit is that the instances cited by the petitioner were of a time prior to 1954, in which year the Government took a decision that instead of cadre seniority, the deciding factor for appointment to teaching posts would be the seniority of teaching experience and that seniority in cadre would prevail only as between officers having equal teaching experience. And in ORDER :to show that the decision thus taken in 1954 has been consistently followed, a statement has been appended as Annexure “A” to the State's counter-affidavit wherein mention has been made of six cases of doctors who were promoted to the rank of Lecturers on the basis of the length of their respective teaching experience in preference to other doctors who were senior to them in service. In this view of the matter, the precedents cited by the petitioner in paragraph 22 of his writ application can be of no avail to him and he cannot legitimately make a grievance against the change of policy made by the Government as far back as in 1954. In a subsequent affidavit filed by the petitioner on the 1st February, 1969, the petitioner has stated in paragraph 17 : “There is yet another precedence of Dr. K. C. Prasad and Dr. Mohan Mishra in which Dr. K.C. Prasad was appointed as Lecturer in Medicine in Rarchi Medical College in preference to Dr. Mohan Mishra, though Dr. Mishra had about six weeks more teaching experience than Dr. K. C. Prasad who was senior in cadre”. With regard to this specific case, the reply on behalf of the State was filed on the 24th February, 1969, and in paragraph 15 thereof, the position has been clarified thus: “Dr. K.C. Prasad was considered for the post of Lecturer in Medicine as there had been inordinate delay both in finalising the selection of Registrar (Medicine) and in notifying the selection (nearly 3 years) and in the selection of Tutors (Medicine) (nearly 7 months). K.C. Prasad was considered for the post of Lecturer in Medicine as there had been inordinate delay both in finalising the selection of Registrar (Medicine) and in notifying the selection (nearly 3 years) and in the selection of Tutors (Medicine) (nearly 7 months). Had the decisions been taken and notified after being taken in time he would have had longer teaching experience than Dr. Mohan Mishra. On these considerations and on the further consideration that Dr. Prasad's merit was evaluated as higher than that of Dr. Mishra for the post of Tutor, Dr. K. C. Prasad was posted as Lecturer in preference to Dr. Mohan Mishra”. I see no reason why this clarification made on behalf of the State should not be accepted as correct and it follows that the mere fact that Dr. K.C. Prasad was dealt with as a special case it cannot follow that the Government policy taken in 1954, to which reference has been made above, should have been departed from in the case of the petitioner as well. In my opinion, it is idle to contend that the petitioner had a superior claim for appointment as a Lecturer on the basis of his cadre seniority alone. 49. So far as the petitioner's postgraduate qualification is concerned, there can be no doubt that it is a recognised qualification of international repute. It is, however, difficult to accept his contention that it is superior to the post graduate qualification of respondent no.5. A mere reference to Parts I and II of the Schedule read with Section 10 of the Dentists Act is sufficient to dispel the misgiving in the mind of the petitioner that a degree or diploma in Dentistry issued by the Royal College of Surgeons, Edinburgh, is to be treated on a level superior to a degree or diploma in Dentistry issued by the University of Bombay. The State Government has, therefore, rightly taken the stand that the post-graduate qualification of the petitioner and respondent no. 5 had to be treated on the same level. The petitioner has, however, relied upon Annexure “25” which appears to lay down ('Criteria for appointment as Tutor at the Darbhanga Medical College” and it is pointed out that therein the post-graduate qualifications, such as F.R.C.S., M.R.C.P. and M.R.C.O.G. were rated higher than M.S. or M.D. degrees. There is nothing to show as to when this criteria were laid down. The petitioner has, however, relied upon Annexure “25” which appears to lay down ('Criteria for appointment as Tutor at the Darbhanga Medical College” and it is pointed out that therein the post-graduate qualifications, such as F.R.C.S., M.R.C.P. and M.R.C.O.G. were rated higher than M.S. or M.D. degrees. There is nothing to show as to when this criteria were laid down. Annexure “25” bears no date. But obviously the weightage to the Degree or Diploma of Royal College of Physicians or Surgeons was meant to be given for dealing with cases of initial appointment, and could not, therefore, necessarily apply to cases of promotion of officers already in service. In dealing with a case of promotion, an appointing authority will not be justified in preferring a junior officer even though he might possess higher academic qualifications than officers who are senior to him, for the simple reason that a senior officer cannot be passed over in the matter of promotion simply because there are officers with better qualifications junior to him. It is only where the superior post is a selection post that the principle of merit-cum-seniority may legitimately be followed. But in ordinary cases of promotion, it is usual to follow the principle of seniority-cum-merit, meaning thereby that a senior officer will be selected for promotion unless his merits or his service records do not show his fitness for the higher post. It follows, therefore, that the petitioner could not have been preferred for appointment as a Lecturer simply because he claimed to possess a higher post-graduate qualification. 50. We have already seem that the authorities had appointed respondent no. 5 as a Lecturer in preference to the petitioner mainly on the ground that respondent no. 5, according to their computation, possessed a longer teaching experience in comparison to the petitioner and Dr. N. Lall. In other words, the seniority was reckoned on the length of teaching experience, In ordinary cadre promotion, undoubtedly the seniority must be reckoned on the basis of length of service, but in case of promotion to a teaching post, the criterion of length of teaching experience, far from being irrational, is, in my opinion, a sound principle. The question, however, is whether this principle was properly applied while determining the relative lengths of teaching experience of the petitioner and respondent no. 5. The question, however, is whether this principle was properly applied while determining the relative lengths of teaching experience of the petitioner and respondent no. 5. It has already been seen that the case of the petitioner is that in this regard he was unfairly treated and that an artificial seniority of about 20 days was given to respondent no. 5, thereby denying the petitioner's just claim for promotion. According to the chart incorporated in paragraph 22 of the State's counter-affidavit, on the date on which respondent no. 5 was prompted as a Lecturer, he had a teaching experience of a total period of 1 year 11 months 23 days, made up of 1 year 3 months 10 days between 22-4-1954 (when he was first appointed as a Tutor) and 31-7-1953 (when he proceeded to Bombay on study leave) and 8 months 13 days from the 12th May, 1967 (when he re-joined as a Tutor on return from Bombay) to the 25th January, 1968 (the date of the notification) Annexure “'9”). As against this, the petitioner had a teaching experience of 1 year 11 months 4 days computing from 21st February, 1966 (when he was given charge of the Tutor's post) until the 25th January, 1968. The petitioner has submitted that in addition to the aforesaid period of 1 Year 11 months and 4 days, he was also entitled to computation of his teaching experience of 8 months 10 days during the Lucknow period and 3 months 1 day constituting his Supy. period, and on this basis his total teaching experience up to the 25th January, 1968, was of 2 years 10 months 21 days, which was longer than the teaching experience of respondent no. 5 by nearly 11 months. But, says the petitioner, his teaching experience during the Lucknow and the Supy. periods was excluded from consideration on arbitrary grounds. It is, therefore, necessary to consider whether this grievance of the petitioner is well-founded. 51. Some of the grievances of the petitioner about non-recognition of his teaching experience during the Lucknow period have already been dealt with above. But, says the petitioner, his teaching experience during the Lucknow and the Supy. periods was excluded from consideration on arbitrary grounds. It is, therefore, necessary to consider whether this grievance of the petitioner is well-founded. 51. Some of the grievances of the petitioner about non-recognition of his teaching experience during the Lucknow period have already been dealt with above. We have already seen that there is no merit in the grievance of the petitioner that his teaching experience of the Lucknow period was totally ignored, or that the ORDER :(Annexure “4”) rejecting his representations (Annexures “2” and “3”) was passed capriciously or dishonestly, We have also seen that his allegations of malafides against the then Chief Minister, Shri Mahamaya Prasad Sinha, or against the appointing authority in relation to the ORDER :contained in Annexure “9” or Annexure “22” do not bear scrutiny. So we are left with the grievances of the petitioner in regard to the Government ORDER :contained in Annexure “12”, whereby he was told that the Government was unable to give recognition to his teaching experience of the Lucknow period for the purpose of counting his teaching experience for the purposes of counting his teaching experience for the purposes of promotion. In paragraph 20 of the writ application, this decision of the Government has been assailed on the ground of discrimination, and in support thereof two cases have been cited, where similar teaching experience had been conceded in the past, namely those of Dr. B.K. Varma, who was a Demonstrator in Pharmacology in the Patna University prior to his appointment in the Bihar Medical Service, and of Dr. A.N. Sinha, who was on deputation as an Associate Professor in All India Institute of Medical Science at New Delhi. The background of the cases of both these officers have been explained in paragraph 16 of the State's counter-affidavit. In regard to Dr. A.N. Sinha, it has been pointed out that he was a member of the Bihar State Health Service from before and his deputation to the All India Institute of Medical Science was made with the consent of the Government of Bihar. It is manifest that the case of Dr. In regard to Dr. A.N. Sinha, it has been pointed out that he was a member of the Bihar State Health Service from before and his deputation to the All India Institute of Medical Science was made with the consent of the Government of Bihar. It is manifest that the case of Dr. A.N. Sinha was not parallel to that of the petitioner, in as much as the petitioner was not in Government service or a member of the Bihar State Health Service during the period when he held a teaching assignment in Lucknow Dental College as an Honorary Demonstrator. The Government stand, as already stated, is that honorary teaching experience of such kind has not been recognised by the Government at any earlier stage unless the person concerned has been in State Government service during the relevant period. Similarly, in regard to Dr. B.K. Verma's case, it has been pointed out that the matter was governed by the specific provision of the Patna University Act, 1961. According, to Section 52 of the said Act, it is the State Government which sends a panel of names for appointment as teachers in the Prince of Wales Medical College in the Clinical Department and Pathology and in the other non-clinical Departments. Some of these persons are deputed from the State Health Services and a few others are appointed by the Patna University, on the recommendation of the Public Service Commission. Some of the teachers, who were deputed to the Patna University in January, of 1962, were working in the non-clinical Departments of the Prince of Wales Medical College. Dr. B.K. Verma was an officer who was a whole-time and fully paid Demonstrator in the Department of Pharmacology at the said Medical College and the Government recognised his teaching experience in view of the fact that his service conditions were guided by the Patna University Act. Dr. Verma's case thus stood on a different footing. The true position, therefore, is that there was no precedent which could be followed for recognising the petitioner's teaching experience of the Lucknow period. It is noteworthy that the petitioner has not been able to cite any instance where the Government had recognised a pre-service teaching experience of any officer for the purpose of promotion to a higher post. It must follow that there is no substance in the petitioner's allegation of unjust discrimination. 52. Mr. It is noteworthy that the petitioner has not been able to cite any instance where the Government had recognised a pre-service teaching experience of any officer for the purpose of promotion to a higher post. It must follow that there is no substance in the petitioner's allegation of unjust discrimination. 52. Mr. Chatterji argued that the Government could not be justified in refusing to recognise the petitioner's teaching experience of the Lucknow period merely on the ground that there was no precedent to this effect from before. Learned counsel pointed out that in the Regulation of the Dental Council of India also no particular kind of teaching experience is contemplated. Even so, I do not think that this Court would be justified in saying that the policy of the Government of not recognising a particular kind of teaching experience or a pre service teaching experience of its officers is wholly irrational, and on that footing strike down the Government ORDER :in exercise of the Court's writ jurisdiction. A writ Court does not sit in JUDGMENT : over the policy of the Government so as to compel the Government to recognise certain kind of teaching experience which the Government does not consider to be fit for recognition. Unless this Court is in a position to hold that the Government ORDER :contained in Annexure “12” is irrational or wholly arbitrary, it is, in my opinion, impossible for this Court to interfere with the said ORDER :in exercise of its writ jurisdiction. The reason given by the Government for making a particular administrative ORDER :may not appear to the Court to be convincing, but the Court cannot substitute its own JUDGMENT : for the Government decision on this ground alone. Besides, the Regulation merely lays down a minimum educational standard. It cannot prohibit the adoption of a higher or better standard. For the aforesaid reasons, it is, in my opinion, impossible to strike down the Government ORDER :contained in Annexure “12” or to hold that the Government was bound to recognise the petitioner's teaching experience of the Lucknow period for the propose of computing his teaching experience for consideration of his case for promotion. In my opinion, no valid ground has been made out for interfering with the Government decision contained in Annexure “12”. 53. In my opinion, no valid ground has been made out for interfering with the Government decision contained in Annexure “12”. 53. It remains to be seen whether the Government decision contained in Annexure “18” refusing to recognise the petitioner's teaching experience during the Supy. period was arbitrary and unjust. I have already shown that there is no substance in the petitioner's case that the ORDER :contained in Annexure “18” was passed “with mala fide intention to support the case of Dr. Rajendra Ram and to show him undue favour”. It has now to be seen whether any unjust discrimination was shown to the petitioner in this matter. In his earlier representation, Annexure “3”, the petitioner had claimed teaching experience for the Supy. period with effect from the 9th February, 1966, but in his later representation, Annexure “16”, he wanted it to be back-dated with effect from the 19th November, 1965, and that has also been his stand in the present writ application in support of which the petitioner has cited the case of Dr. R. N. Chatterjee, who was on Supy. duty for two months which was counted towards his service as a Demonstrator when he was appointed as such with effect from the 22nd October, 1962 (vide Annexure “17”). In Annexure “19”, the petitioner has referred to several other cases where the Supy. duty of Medical Officers had been counted towards their teaching experience. The reply of the Government contained in paragraphs “18”and “19” of the State's counter-affidavit is that in all those cases the officers concerned were doing actual teaching work during the Supy. period and this fact with regard to the officers mentioned in Annexure “19” had been certified by the Head of the Department or the Principal of the College to which they were attached whereas in the case of the petitioner, he was neither attached to the Dental College nor did any actual teaching work there, and nor was the fact certified by the Principal of the Dental College. I find no justification for rejecting the explanation given on behalf of the Government for not treating the case of the petitioner on the same footing as those of Dr. R.N. Chatterjee and the other Medical Officers mentioned in Annexure” 19”. In fact upon the petitioner's own case as put forward in Annexure “3”, he had done no teaching work prior to the 9th February, 1966. R.N. Chatterjee and the other Medical Officers mentioned in Annexure” 19”. In fact upon the petitioner's own case as put forward in Annexure “3”, he had done no teaching work prior to the 9th February, 1966. He cannot, therefore, make any legitimate grievance against the non-acceptance of his teaching experience between 19th November, 1965, and the 8th February, 1966. The Government cannot be said to have acted arbitrarily in not conceding teaching experience to the petitioner for the period during which he had done no teaching work whatsoever. The period between the 9th February, 1966, and the 20th February, 1966 (a period of 12 days), however, stands on a different footing, because the petitioner had reported for duty as a Tutor on the 9th February, 1966, and he was not to blame if not charge of his post was given to him until the 21st February, 1966. Even though no actual teaching work may have been taken from the petitioner during these 12 days, the petitioner ought not to suffer on account of the delay in handing over charge to him. Even so this does not advance the petitioner's case because it is impossible to think that this delay was made with the malafide intention of showing undue favour to respondent no. 5. Besides, even if these 12 days were to be added to the petitioner's teaching experience of 1 year 11 months and 4 days, his total teaching experience would still be shorter than the total teaching Experience of respondent no. 5. Having examined the whole position, I have come to the conclusion that the petitioner is not entitled to succeed on the ground that he was arbitrarily discriminated against in the matter of computation of his teaching experience or that any undue advantage was given to respondent no. 5 in connection with his promotion. It follows that the petitioner has failed to make out any case for interference with the Government ORDER :s contained in Annexures “9”, “12” and “18”. 54. So far as the substantive appointment of respondent no. 5 made under the Government ORDER :contained in Annexure “22” is concerned, the only question that remains to be considered is whether this was made on extraneous considerations on account of the alleged immense influence of Dr. Dukhan Ram. 54. So far as the substantive appointment of respondent no. 5 made under the Government ORDER :contained in Annexure “22” is concerned, the only question that remains to be considered is whether this was made on extraneous considerations on account of the alleged immense influence of Dr. Dukhan Ram. It must be remembered that this ORDER :was not passed during the ministry of Shri Mahamaya Prasad Sinha, but during a subsequent ministry, which also went out of office soon after it was passed on the 25th June, 1968. It is difficult to imagine that both the Chief Ministers concerned, possibly belonging to two rival parties, had joined hands in making malafide ORDER :s in ORDER :to oblige Dr. Dukhan Ram. The influence of Dukhan Ram upon the second ministry is alleged to have been so great that a vacancy in the substantive post of Lecturer with effect from the 25th January, 1968, had been artificially created by promoting Dr. R.P. Singh to the rank of a Professor with retrospective effect. In other words, for the purpose of showing undue favour to respondent no. 5, undue favour was also shown to Dr. R. P. Singh. I find it difficult to accept such a wild insinuation as having any semblance of truth. The State's reply to the petitioner's amendment petition shows that the post of a Professor was lying vacant in the College from the 1st July, 1967, and in that vacancy Dr. R.P. Singh was temporarily promoted with effect from the 4th August, 1967, since which date he had been working as a Professor. Therefore, when it was decided to promote Dr. R. P. Singh to a substantive post of Professor, his promotion as such naturally made with effect from the 4th August, 1967. Evidently, therefore, the post of Lecturer which Dr. R. P. Singh was holding had also fallen vacant with effect from the 4th August, 1967. Had the appointing authorities or the Chief Minister concerned been actuated with malafide motives, it was easy for them to appoint respondent no. 5 as a Lecturer with effect from the 4th August, 1967, itself. The post of Lecturer which had thus fallen vacant was lying unfilled since long before, not only on the 25th January, 1968, but also on the 25th June, 1968, and since the respondent no. 5 as a Lecturer with effect from the 4th August, 1967, itself. The post of Lecturer which had thus fallen vacant was lying unfilled since long before, not only on the 25th January, 1968, but also on the 25th June, 1968, and since the respondent no. 5 was holding the post of Lecturer on a temporary basis with effect from the 25th January, 1968, it is not at all strange that it was decided to appoint him under Annexure “22” with retrospective effect, particularly when, besides having a longer teaching experience in comparison to the petitioner, he had actually been working as a Lecturer in the leave vacancy of Dr. P.N. Gupta. Thus the charge of malafide against this ORDER :(Annexure “22”) also does not stand scrutiny. 55. Having given a careful consideration to all aspects of the petitioner's case, I have, therefore, come to the conclusion that he is not entitled to any relief, and this application is, accordingly, dismissed. In the circumstances of this case, however, there will be no ORDER :for costs. 56. I agree, but I wish to make some observation. Mukharji. J. 57. It is unnecessary for me to mention the facts of this case which have been fully discussed in the JUDGMENT : of Hon'ble Mr. Justice G.N. Prasad. In this case, it is urged by the learned counsel appearing on behalf of the petitioner that the impugned ORDER :contained in Annexure “9” of the writ application appointing respondent no. 5 to the post of lecturer in the Patna Dental College is violative of Articles 14 and 16 of the Constitution of India on account of denial of equal opportunity to the petitioner in the matter of his appointment to that post. It is well settled that the Government have wide discretion in making appointments to the posts of lecturers and professors in the educational departments which are under the State Government. The State Government is undoubtedly the sole authority to appoint a suitable candidate to the post of a lecturer in toe Patna Dental College. There was some argument daring the hearing of this application as to whether the instant case is a case of promotion from a lower post to a higher post. The contention urged on behalf of the petitioner is that it is a case of promotion and this fact was not denied on behalf of the respondents. There was some argument daring the hearing of this application as to whether the instant case is a case of promotion from a lower post to a higher post. The contention urged on behalf of the petitioner is that it is a case of promotion and this fact was not denied on behalf of the respondents. Simply because, respondent no. 5 has been promoted to the post of a lecturer in super-session of the claim of the petitioner who is senior to respondent no. 5, it cannot be stated that the petitioner has been discriminated against in the matter of promotion and that Articles 14 and 16 (1) of the Constitution of India have been violated. Equal opportunity contemplated by Article 16 (1) of the Constitution of India does not mean that the State Government which is the appointing authority in this case is debarred from picking and choosing a particular candidate from amongst several candidates for the post although a particular candidate was not the senior-most. So long as the case of the petitioner was considered by the appointing authority, it cannot be said that he had not been given equal opportunity along with respondent no. 5 in the matter of promotion to the post of lecturer. This view finds support from the decision in the case of (3) Mukund Deo V. Mahudu, reported in A.I.R. 1965 S.C. 703. 58. This leads to the discussion as to whether the case of the petitioner for promotion to the post of lecturer was considered by the State Government. It is urged on behalf of the. petitioner that in the matter of promotion to the post of lecturer, the State Government did nod consider (i) his seniority in service cadre, (ii) his better qualification, and (in) his Lucknow teaching experience and that if these had been considered he would surely have been appointed to the Post of lecturer. It may be stated here that the petitioner his not shown that he has any legal right under any statute to get an ORDER :from the State Government appointing him to the post of a lecturer in the Patna Dental College. The petitioner has also not made any clear allegation in the present writ application that the Government did not consider his service seniority and his qualification while passing the ORDER :dated 25.6.1968 appointing the respondent no. The petitioner has also not made any clear allegation in the present writ application that the Government did not consider his service seniority and his qualification while passing the ORDER :dated 25.6.1968 appointing the respondent no. 5 to the post of lecturer in the Patna Dental College. It is true that in paragraph 7 of the writ application, the petitioner alleged that he is in the Bihar Government service for the last eleven years and has high post-graduate qualification but that his claim has been ignored for the post of lecturership while persons junior to him in service with the lesser qualifications have been promoted to the post of lecturership in the Patna Dental College. It is, however, clear from the aforesaid averment that the petitioner did not allege as to who had ignored his seniority and post-graduate qualification. It is also not clear from this averment as to whether these qualifications of the petitioner were ignored at the time of appointment of respondent no. 5 by ORDER :dated 25.6.1968. When these grounds have not been specifically pleaded in the writ application, the petitioner cannot be allowed to challenge the impugned ORDER :dated 25.6.1968 on the above ground. 59. Further it may be stated that seniority in service cadre is not the only criterion to be taken into consideration for the promotion to the post of a lecturer in the Government institutions. It is true that in the post seniority in cadre service was accepted by the Government as a deciding factor in the matter of promotion to the teaching post and this fact has been illustrated in paragraph 22 of the present writ application. The Government in its counter-affidavit in paragraph 20 says that in the year 1954 the Government took a decision that seniority in teaching side would be reckoned on the basis of the length of teaching experience and that seniority in cadre will prevail only between officers having equal teaching experience. The Government has appended an annexure along with its counter-affidavit in which it has given a list of six doctors who were promoted to the rank of lecturer because they had longest teaching experience. In this connection, the learned counsel appearing on behalf of the respondent no. 5 has referred to an unreported decision of this Court in the case of (4) Dr. Umakant Sharma V. State of Bihar in C.W.J.C. Nos. In this connection, the learned counsel appearing on behalf of the respondent no. 5 has referred to an unreported decision of this Court in the case of (4) Dr. Umakant Sharma V. State of Bihar in C.W.J.C. Nos. 984 and 1235 of 1965 disposed of on 3.1.1967 in which their Lordships held mere seniority in the general administrative side cannot be decisive and the appointing authority must necessarily have wide discretion in selecting suitable officers for posts on the teaching side.” From these facts, it is manifest that the Government have now changed its policy and now one is promoted by the Government to the post of lecturer, who has the longest teaching experience and not according to the seniority only. 60. It may also be stated that there is no cogent material to hold that the petitioner holds a better or superior post-graduate qualification. The Dental Council of India does not make any distinction between F.D.S.R.C.S. obtained by the petitioner and M.D.S. obtained by respondent no. 5. Both are post-graduate qualifications and candidate having any of these qualifications is eligible for appointment to the post of a lecturer. It is stated in paragraph 5 of the writ application that the petitioner is the only Dental Surgeon in the State of Bihar having the aforesaid postgraduate qualification and this fact does not appear to have been controverted in the counter-affidavit filed on behalf of the State but this qualification of the petitioner cannot be preferred to a candidate having M.D.S. Degree when both the qualifications are held to be on par by the Dental Council of India as a candidate having any of these qualifications is eligible for the post of a lecturer. 61. It is hot necessary for me to discuss the allegation of the petitioner that his Lucknow teaching experience has not been considered by the State Government became if I may say so with respect this aspect has been elaborately discussed in the JUDGMENT : of Hon'ble Mr. Justice G.N. Prasad. 62. The question which in my opinion arises now for consideration is whether the rejection of the representation of the petitioner can be said to have been done malafide. It is well settled that where want of bonafide of the authority in passing the impugned ORDER :is pleaded the burden of proof will be on the person alleging the want of bonafide. It is well settled that where want of bonafide of the authority in passing the impugned ORDER :is pleaded the burden of proof will be on the person alleging the want of bonafide. As held in the case of (5) Pratap Singh V. State of Punjab reported in A.I.R. 1964 S.C.72 at page 81 an allegation as to bad faith cannot be readily accepted, except, on clear proof thereof. In the instant writ petition no allegation of malice was attributed against any individual. At best it may be attributed to some extent to Shri Mahamaya Prasad Sinha, Ex Chief Minister of Bihar. It will, in my opinion, be improper for this Court to investigate this allegation of malice against Shri Mahamaya Prasad Sinha, when he is not a party to this proceeding. Many representations of the petitioner were rejected by the State Government as will appear from the writ application itself. But no allegation has been made as to who were the ministers or officers who were responsible for rejecting those representations. Malice, in fact, cannot be attributed to an abstract personality as State Government. Malice, in fact, is a charge against individual It is also important to note that the State of Bihar in paragraph 17 of its counter• affidavit has denied the allegation of malafide and has asserted that the question of promotion to the post of lecturer and the representation of the petitioner was examined at different levels. It is difficult to accept the contention of the petitioner that his case was not considered by the State Government. I have already adverted to above that the petitioner filed many representations in this case and the fact that the State Government had passed some ORDER :on those representations will falsify the claim of the petitioner that his representations were not at all considered by the State Government. It cannot, therefore, be stated to be a case of non-consideration of the claim of the petitioner. It may be mentioned in this connection that on one occasion the petitioner had requested the State Government to count his Lucknow teaching experience and the State Government referred the matter to the Registrar, Lucknow University for classification. The Registrar, Lucknow University replied to the letter of the Additional Director of Health Services regarding the fact that the petitioner was appointed as an honorary administrator in dentistry on an honorarium of Rs. The Registrar, Lucknow University replied to the letter of the Additional Director of Health Services regarding the fact that the petitioner was appointed as an honorary administrator in dentistry on an honorarium of Rs. 100/- per month by the Executive Council of this University and that he had worked in that capacity from 15.11.1965 to 31.7.1966-Vide Annexure 11 of the writ application. In this circumstance, it cannot be said that the State Government had not at all considered the representation of the petitioner. Further it transpires from the counter-affidavit filed on behalf of the State that the respondent no. 5 was appointed to the post of lecturer as he had the longest teaching experience. This means that the case of the petitioner was considered by the State Government and as his teaching experience was less than that of the respondent no. 5 he could not be appointed as a lecturer. 63. Further contention of the petitioner is that the State Government with ulterior motive had rejected the representation of the petitioner. It is alleged that if his Lucknow teaching experience was taken into consideration his teaching experience would clearly be more than the teaching experience of respondent no. 5. The State Government in its counter-affidavit has given some reasons why it did not accept the teaching experience of the petitioner at Lucknow. The grounds which the State Government have given for not considering the petitioner's teaching experience at Lucknow may not be acceptable to this Court as sufficient and this Court may come to a different conclusion regarding the said representation. But this fact will not entitle this Court to interfere with the ORDER :passed by the State Government on the representation of the petitioner regarding acceptance of his Lucknow teaching experience because this Court is not sitting in appeal against the impugned ORDER :passed by the State Government. This Court cannot be invited to investigate into the sufficiency of the material or the reasonableness of the ground on which the representation of the petitioner was rejected. I have carefully looked into the grounds given by the Government in rejecting the representation of the petitioner and I do not find that the grounds are absurd and arbitrary and that no reasonable man is expected to give these grounds in rejecting the said representation of the petitioner. I have carefully looked into the grounds given by the Government in rejecting the representation of the petitioner and I do not find that the grounds are absurd and arbitrary and that no reasonable man is expected to give these grounds in rejecting the said representation of the petitioner. In the circumstances, it cannot be said that the representation of the petitioner was rejected by the court malafide. 64. The learned counsel appearing for the petitioner, at first argued that the ORDER :passed by the State Government in rejecting the representation of the petitioner was malafide on facts but finding that this point could not be substantiated in this Court for want of sufficient and cogent material, he gave up this point towards the close of this argument and said that he would not press it. The learned counsel for the petitioner, however, contends that in the instant case the ORDER :of the State Government is vitiated on account of malice in law. It is urged that the Dental Council of India has prescribed a rule regarding minimum staff in the Dental College. It is recited in this rule that in ORDER :to be eligible for the post of a lecturer in the Dental College, a candidate must possess three years teaching experience. In that rule there is a note attached to it to this effect “when candidates with requisite teaching experience are not available a reference may be made to Dental Council of India to condone the same”. The contention of the petitioner is that although the respondent no. 5 had not the requisite teaching experience of three years, the State Government condoned his teaching experience and appointed him. It is further urged that the State Government should have sent the representation of the petitioner to the Dental Council for condonation of the teaching experience of the petitioner and that it had no authority to condore the teaching experience of the respondent no. 5. Further contention of the petitioner is that the State Government was committed to follow the above rule as will appear from its counter-affidavit [which is mentioned at Page 228 (a) of the typed brief]. 5. Further contention of the petitioner is that the State Government was committed to follow the above rule as will appear from its counter-affidavit [which is mentioned at Page 228 (a) of the typed brief]. In this counter-affidavit the State Government arrested “the Government had decided on 4.11.1966 in file no IIA3/20124/- 64 that in future no relaxation should be made in the criteria laid down by the Dental Council of India in matters of academic qualification and experience and all appointments should be made strictly according to the criteria of the Dental Council of India”. It is contended that the rules framed by the Dental Council of India provide that the condonation of the requisite teaching experience could be made by the Dental Council only after it is referred to it. So it is urged that how could the State Government condone the shortage in length of teaching experience of respondent no. 5 at the time of his appointment as a Lecturer in the Dental College. It is, therefore, urged that the Government has departed from this rule of conduct and that this departure is without any ostensible reason and it is, therefore, arbitrary and must be 'Struck down as mala fide. The learned counsel for the petitioner further urged that the Government has given no cogent reason why it did not refer the case of the respondent no. 5 to the Dental Council of India for condoration of his shortage in teaching experience; but simply stated that it was not bound to refer it. Reliance has been placed on the decision reported in (6) A.I.R. 1962 S.C. 718 wherein their Lordships held that the Union Government and its officers are not entitled at their mere whim to ignore the promise made by the Government. Mr. K.D. Chatterji appearing for the petitioner further contends that the State Government had actually followed this Dental Council Rules in the case of appointment of Dr. P.N. Gupta as a lecturer of the Dental College and referred the case of this doctor to the Dental Council for condonation of his teaching experience which the Dental Council alone was competent to condone under the rules. Jurisdiction to condone the length of teaching experience is said to lie with the Dental Council only and not with the State Government. It is true that the State Government had referred the case of Dr. Jurisdiction to condone the length of teaching experience is said to lie with the Dental Council only and not with the State Government. It is true that the State Government had referred the case of Dr. P.N. Gupta to the Dental Council as will appear from the minutes of the Dental Council of India dated 7.3.1965. It is, therefore, contended that the State Government made a sort of promise as per decision referred to above on 4.11.1966 that it will follow the Dental Council Rules and as such it is not entitled to ignore the promise made by it. 65. We have carefully looked into the decision of the Government on 4.11.1966 in file no. IIA 3-20124/64. That decision simply says that the Government should adopt the minimum academic qualification and experience as laid down by the Dental Council in the matter of appointments to be made in the Dental College. This decision nowhere says that it would condone the teaching experience of any candidate if it is short of the requisite period. There is nothing in the decision of the Government on 4.11.1966 that it should always refer to the Dental Council to condone the shortage in the requisite teaching experience of any particular candidate. The decision simply stated that the minimum educational experience as laid down by the Dental Council of India required for the appointment to the several posts of the Patna Dental College should be adhered to. The learned Advocate General has urged that the State Government did not consider the Dental Council Rules as mandatory because when the case of Dr. J. Chandra was being considered for the post of Principal of the Patna Dental College, the State Government itself condoned his length of teaching experience without referring the matter to the Dental Council. Similarly, it is urged on behalf of the State Government that it had condoned the teaching experience of Dr. B. P. Singh, Dr. B.N. Chatterji and others while they were appointed as lecturers and professors in the Dental College. It is, therefore, manifest that the State Government did not practically follow the Dental Council Rules in the case of promotion of these doctors. Except in the case of Dr. B. P. Singh, Dr. B.N. Chatterji and others while they were appointed as lecturers and professors in the Dental College. It is, therefore, manifest that the State Government did not practically follow the Dental Council Rules in the case of promotion of these doctors. Except in the case of Dr. P.N. Gupta, our attention has not been drawn to any other single instance where the State Government followed the above rule and referred the cases of the candidates for the condonation of the deficiency in the teaching experience to the Dental Council of India. It is significant to note that the petitioner in his petition dated 20.7.1966 (Annexure 3 at page 19 of the printed brief) admits that in the past the Government had condoned the deficiency in the prescribed period of teaching experience in the matter of appointment of lecturers in the Dental College at Patna. It is, therefore, clear that this rule was never treated or accepted as mandatory by the State, and so when the State Government in the instant case condoned the teaching experience of respondent no. 5 without referring the matter to the Dental Council its action cannot be said to be arbitrary or malafide. Moreover, it may be important to note that the petitioner never prayed before the State Government for referring to the Dental Council of India for condonation of shortage in his teaching experience. 66. The learned Advocate General urged that the rule of the Dental Council for referring the case of a candidate for condonation of the deficiency of qualification is not mandatory but seems to be directory. This point has been elaborately and exhaustively dealt with by his Lordship Mr. Justice G.N. Prasad in his JUDGMENT :. One of the tests which is usually applied to find out if any rule is mandatory or recommendatory is whether any provision is made in the said rule as to what would happen on non-observance of the rule and whether any penalty has been imposed if the rule was not followed. In the instant case, it will appear from the expression used in the rule that it is clearly recommendatory as it was recommended to the State Government that in cage of any candidate's teaching experience is short of the minimum teaching experience required, the matter should be referred to the Dental Council for condonation of the shortage. In the instant case, it will appear from the expression used in the rule that it is clearly recommendatory as it was recommended to the State Government that in cage of any candidate's teaching experience is short of the minimum teaching experience required, the matter should be referred to the Dental Council for condonation of the shortage. This means that it is desirable for the State Government to refer the matter to the Dental Council, because if this rule was intended to be imperative then it was expected that there would have been some provision in the Act or the Rules that a candidate having short teaching experience as required under the rule could not have been appointed as a lecturer or professor unless the shortage in his teaching experience was condoned by the Dental Council. In the absence of such a clause in the rule and in view of the clear expression used in the rule, I accept the contention of the learned Advocate General that the rule is merely directory and not mandatory. 67. The learned counsel appearing for the petitioner has contended that a directory provision is to be followed as much as a mandatory provision and it has to be substantially complied with. In support of this contention reliance has been placed to the case of (7) State of Uttar Pradesh V. Jogendra Singh, reported in A.I.R. 1963 S.C. 1618. In this case their Lordships were interpreting the meaning of Rule 4 (2) of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. This rule is “the Governor may in respect of a gazetted Government servant on his own request, refer his case to the Tribunal in respect of matters referred to in Sub-rule (1)”. In the opinion of their Lordships, Rule 4 (2) aforesaid gives the Government servant a right to request the Governor to refer his case to the Tribunal in respect of matters mentioned in Rule (1). Their Lordships observed “there is no doubt that the word ‘may’ generally does not mean ‘must’ or ‘shall’. But it is well settled that the word ‘may’ is capable of meaning ‘must’ or ‘shall’ in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation the word ‘may’ which denote discretion should be construed to mean a command. But it is well settled that the word ‘may’ is capable of meaning ‘must’ or ‘shall’ in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation the word ‘may’ which denote discretion should be construed to mean a command. So it appears that the facts of the instant case are different from the facts of the reported case. In the instant case, there does not appear to be any obligation on the part of the State Government to refer the case of any candidate to the Dental Council nor was in the instant case any request from any candidate to refer his case to the Dental Council. 68. The learned counsel for the petitioner further urged that these Dental Council Regulations were framed by the Dental Council of India after consultation with all the State Governments of India including the State Government of Bihar and as such these regulations are binding on the State of Bihar. Annexure C-1 (mentioned at page 216 of the printed brief) no doubt shows that the Secretary, Dental Council of India wrote a letter to the Director of Health Services, Bihar Government to the Effect that the Dental Council Regulations were finalised after these were circulated to all the State Governments, even Universities and Heads of Dental Colleges and after they were consulted in the matter. Simply because the State Governments were consulted by the Dental Council of India in the matter of framing the Dental Council Regulations it will not mean that the Slate Governments were bound to follow those regulations in the absence of any mandatory provisions in the regulations. If it was the intention of the Dental Council of India to make the regulations to have a binding force on the State Governments, it would have easily inserted a clause in the regulation to that effect instead of mentioning therein that the regulation will be of a recommendatory character. 69. In view of what I have observed above, I hold that the prayer of the petitioner in paragraph 29 of the writ application for issue of an appropriate writ or ORDER :quashing the ORDER :s contained in Annexures 12, 18 and 22 cannot be allowed. The petitioner, in my opinion, is not entitled to any relief in this case. 69. In view of what I have observed above, I hold that the prayer of the petitioner in paragraph 29 of the writ application for issue of an appropriate writ or ORDER :quashing the ORDER :s contained in Annexures 12, 18 and 22 cannot be allowed. The petitioner, in my opinion, is not entitled to any relief in this case. The application is accordingly dismissed but in the circumstances of this case, parties will bear their own costs. Madan Mohan Prasad, J. 70. The facts of this case have been stated already in detail by my learned brother, G.N. Prasad, J. and it is unnecessary for me to re-state them. Brother Prasad has dismissed this application and I agree with him in the ORDER :proposed, but as I view the matter differently on some of the aspects of the case, I propose to record my reasons for coming to the same conclusion. 71. On behalf of the petitioner the following points have been urged. Firstly, that the appointment of Dr. Ram is illegal on the grounds that (i) he did not possess three years’ teaching experience as required by the regulations of the Dental Council. (ii) any shortage in teaching experience could be condoned by the Dental Council alone and not by the State Government, (iii) the regulations of the Dental Council which require reference to them for condonation are mandatory and have been violated in the present case, and (iv) the Government did not consult the Public Service Commission. The next argument is that the petitioner's seniority in the cadre of the service, his superior qualification and longer teaching experience have not been considered and recognised and he has been discriminated against. Thirdly, it has been urged that the Government acted malafide with a view to favour Dr. Ram because he is the son of Dr. Dukhan Ram who happens to be a close friend of Shri Mahamaya Prasad Sinha the then Chief Minister and it was on account of this malice that the petitioner’s claim was rejected and Dr. Ram was appointed. 72. The fifth respondent and the Advocate General appearing for the State of Bihar have refuted all these arguments and Mr. Dukhan Ram who happens to be a close friend of Shri Mahamaya Prasad Sinha the then Chief Minister and it was on account of this malice that the petitioner’s claim was rejected and Dr. Ram was appointed. 72. The fifth respondent and the Advocate General appearing for the State of Bihar have refuted all these arguments and Mr. J.C. Sinha, appearing for the fifth respondent, has urged by way of a preliminary objection that the petitioner’s application for writ is not maintainable because he himself had no legal right to the post inasmuch as he did not have the requisite teaching experience. 73. I will first take up the preliminary point. It is said that the petitioner himself not being qualified, inasmuch as although he had a post-graduate qualification, he did not have three years’ teaching experience at the date of the appointment, could not have claimed a right to be promoted to the post of a lecturer, and therefore, he has no right to challenge the appointment of Dr. Ram. It is also said that the ORDER :s passed by Government are purely administrative ORDER :s and cannot be quashed by writ of certiorari. The first point thus to be decided is whether on his allegations the petitioner has a right to challenge the appointment of Dr. Ram and the ORDER :s passed by the State on his representations. It has been urged and in my opinion rightly that the ORDER :of appointment passed by the State as also their ORDER :s on the various representations of the petitioner; are purely administrative ORDER :s and they cannot be quashed by a writ of certiorari. It is, however conceded that writs or directions in the nature of mandamus and quo warranto may be available to the petitioner. In ORDER :, however, to get a writ of mandamus it is said he must show that he has a legal right which has been violated and in case of a writ of quo warranto he must show that it is a public office to which Dr. Ram has been appointed and that he has been appointed illegally. It must be stated at the outset that Mr. Chatterji has stated on behalf of the petitioner that it is not a writ or direction in the nature of quo warranto that is sought for in this case. Ram has been appointed and that he has been appointed illegally. It must be stated at the outset that Mr. Chatterji has stated on behalf of the petitioner that it is not a writ or direction in the nature of quo warranto that is sought for in this case. He has pressed his claim for the issue of a writ of mandamus. 74. It will be relevant at this stage to take note of the guiding principles which have been adopted by courts in England, United States and in our own country in the matter of issue of writs of mandamus. The object of such a writ it is to compel the opposite party to act in accordance with law. Mandamus is issued to enforce duties of public or quasi public nature and it applies to administrative and executive acts. There are however, certain conditions which must exist before such a writ can be issued. The first and the most important condition is that the applicant must show that he has a specific legal right to he performance of a legal duty by the party against whom mandamus is to be issued. Where the applicant has a substantial interest in the performance of the act by the opposite party it is sufficient for the purpose of issue of a writ of mandamus. In cases where an ORDER :is made overriding the objection of a person the latter has a substantial interest to ask for mandamus to compel the authority to perform its legal duty. Such a duty may arise either out of statute or common law or custom. In one case our Supreme Court even held it to apply to a case where contractual rights with a third party are interfered with by the State. If the right arises out of a statute and if such statute is merely permissive, no mandamus would issue. A writ of mandammus is not issued to control the manner in which the discretionary power is exercised but it may be issued to prevent abuse of discretion or a transgression of the limits of the discretion or exercise of discretionary power in bad faith or where the exercise of the discretion results in violating constitutional guarantees, as for example, equal protection of the laws. The right claimed and the corresponding duty of the party against whom writ is to be issued must be of a public nature. The application for writ must be preceded by a distinct demand for performance of the duty and there must be a refusal either by words or by conduct by the other party. Next the Court must be satisfied that the writ would be effective and not futile, that there is no other equally convenient and effective remedy open to the petitioner and that the conduct of the petitioner does not disentitle him to a remedy in equity. These well settled principles laid down by the English and American Courts have been generally accepted by the Supreme Court in various cases. 75. In the light of the above principles we have to judge the maintainability of this application. The question first arises as to whether the petitioner has any legal right which he is entitled to ask for enforcement. It has been said that the petitioner has no right to the appointment or to promotion to the post of a lecturer. The petitioner does not contend that he has a right to be promoted. It is too late in the day for anyone to put forward such a contention. All that he has claimed is that he has a legal right to be considered for promotion and such a consideration must be an honest consideration which has not been done in the present instance. It is admitted that on the date of the appointment of Dr. Ram, namely the 25th January, 1968, the petitioner was working as a Tutor in the Dental College along with Dr. Ram. It has not been disputed that the petitioner had been appointed to the Bihar Health Services in the year 1957 and was, therefore, senior to Dr. Ram by nearly 7 years in the cadre of service. It has also not been disputed that the petitioner had the post graduate qualification of Fellowship of Dental Surgery of the Royal College of Surgeons (F.D.S.R.C.S). So far as the other required qualification, viz. teaching experience, is concerned, it is admitted on all hands that neither Dr. Ram nor the petitioner had 3 years’ experience on the relevant date. The State condoned the shortage in the case of Dr. Ram. So far as the other required qualification, viz. teaching experience, is concerned, it is admitted on all hands that neither Dr. Ram nor the petitioner had 3 years’ experience on the relevant date. The State condoned the shortage in the case of Dr. Ram. The petitioner's grievance is that in spite of his seniority in service and his qualifications, which are superior to that of Dr. Ram, his case has not been honestly considered. His case is that if his teaching experience of the Lucknow period alone were also taken into account, he would have had a much longer teaching experience than Dr. Ram and even in the absence of that Dr. Ram had teaching experience, longer only by 20 days than that of the petitioner. He has alleged that in cases of some other members of the medical profession teaching experience obtained by them in colleges other than where they held the appointments, have been counted as also experience of teaching during supernumerary duty period has been counted in cases of others but the State has practised discrimination against the petitioner in these matters, with a view to favour Dr. Ram. He has further alleged that the then Chief Minister Shri Mahamaya Pnsad Sinha happened to be a close friend of Dr. Dukhan Ram, the father of respondent no. 5 and the ORDER :appointing him was passed malafide. His various representations were also rejected malafide with a view to favour him. 76. Looking at the allegations and circumstances, which I have mentioned above, it is not possible to come to the conclusion that the petitioner has no legal right whatsoever and that his application is, therefore, not maintainable. As I have said above, the petitioner does not claim the right to be promoted but he doss claim the right to be considered/honestly for the purpose of promotion. I am unable to take the view that this right to be considered for promotion is not a legal right and that a writ of mandamus cannot be issued on that account. Our Constitution guarantees the rule of law and the petitioner has a fundamental right to be treated on the basis of Equality before law under Article 14 and the right of equal opportunity in the matter of appointment to any office under the State under Article 16. Our Constitution guarantees the rule of law and the petitioner has a fundamental right to be treated on the basis of Equality before law under Article 14 and the right of equal opportunity in the matter of appointment to any office under the State under Article 16. There can be little doubt that Article 226 of the Constitution lays the duty on the High Court Ira enforce such fundamental rights. If the petitioner succeeds in showing that the State has acted in violation of any mandatory rules, he would certainly be entitled to have to the appointment of Dr, Ram quashed with a direction to make the appointment in accordance with law or, if he succeeds in showing that in the matter of appointment the State has practised discrimination, he will be entitled to have this appointment set aside or if he can show that the State has acted malafide there would be no difficulty in his getting the reliefs he has prayed for. Admittedly it was a case of promotion of a Tutor to the post of Lecturer. Both the petitioner and respondent no. 5 being Tutors on the relevant date, the petitioner undoubtedly had a right to be considered for the promotion. There was thus an obligation on the State to consider him also for such a promotion. It cannot, therefore, be said that he had no legal right whatsoever and that he could not come upto this Court on that account. The preliminary objection of Mr. J.C. Sinha must, therefore, be overruled. 77. The most important question which presents itself for decision in this case is whether the regulations framed by the Dental Council of India are mandatory in nature. 78. I need not quote the aforesaid regulations, for, they have been quoted in extenso in the JUDGMENT : of my learned brother G.N. Prasad, J. These regulations are said to have been framed by the Dental Council of India and approved by the Government of India under Clauses (g) and (h) of Sub-section (2) of Section 20 of the Dentists Act, 1948. It win be relevant to notice the scheme of the Act and its provisions at this stage. It is quite clear from the preamble of the Act itself that it is intended to make provisions there by for the regulation of the profession of dentistry and for that purpose to constitute Dental Council. It win be relevant to notice the scheme of the Act and its provisions at this stage. It is quite clear from the preamble of the Act itself that it is intended to make provisions there by for the regulation of the profession of dentistry and for that purpose to constitute Dental Council. Chapter I of the Act is introductory and Sections 1 and 2 under this chapter deal with the short title and extent of the Act and interpretation of word. In Chapter II Sections 3 to 9 deal with the constitution and composition of the Dental Council of India, its incorporation, mode of elections, term of office, President and Vice President of the Council, staff, remuneration and allowances and the Executive Committee of the Council. Section 10 deals with recognition of qualifications. Under this section some qualifications mentioned in the Schedule are recognised as dental qualifications and others have to be recognised by the Dental Council of India. Section 11 deals with the qualifications of dental hygienists. Under this section any authority in a State granting a qualification for dental hygienists has to apply to the Council to have such qualification recognised. Section 12 relates to dental mechanics. Under this section the Dental Council of India is to prescribe the period and nature of apprenticeship or training which shall be undergone and other conditions which shall be satisfied by a person before he is entitled as a dental mechanic. Section 13 deals with the effect of recognition. Section 14 deals with the Council s power to require information as to courses of study and training and examination to be undergone in ORDER :to obtain dental or dental hygiene qualification. Section 15 allows the Executive Committee of the Dental Council to appoint Inspectors to attend any examination held by the authorities in the Stale which grant such qualifications. Section 14 deals with the Council s power to require information as to courses of study and training and examination to be undergone in ORDER :to obtain dental or dental hygiene qualification. Section 15 allows the Executive Committee of the Dental Council to appoint Inspectors to attend any examination held by the authorities in the Stale which grant such qualifications. Section 16 of the Act deals with withdrawal of recognition if it appears to the Council that the courses of study and training or the examinations to be undergone in ORDER :to obtain the recognised dental or dental hygiene qualification or the conditions for admission to such courses or the standards of proficiency required from the candidates at such examinations are not in conformity with regulations made under this Act or fall short of the standards required thereby, or when it appears to the Council that the institution does not satisfy the requirements of the Council. Section 17 deals with the mode of declarations under Sections 10, 11 or 16 which has to be in the form of resolution at the meeting of the Council etc. Section 18 deals with maintenance of register of dentists. Section 19 provides for certain information to be furnished to the Central Government and Section 20, the last section under this chapter, deals with the power to make regulations. Under this section the Council may make regulations to carry out the purposes of this chapter. Clause (g) of Sub-section (2) provides that such regulations may prescribe the standard curriculum for the training of dentists and dental hygienists, and the conditions for admission to courses of such training:” and under Clause (h) they may prescribe the standards of Examinations and other requirements to be satisfied to secure for qualifications recognition under this Act” Other chapters of the Act are not relevant for the purposes of the present case. 79. An analysis of the provisions of Chapter II of the Act clearly shows that the matter of recognition of qualifications of dentists and dental hygienists is the main function of the Dental Council of India. The Dental Council may frame rules for carrying out the purposes of this chapter. The Rules must therefore be read as meant to carry out the purpose mentioned, unless they show otherwise. Clauses (g) and (h) of Sub• section (2) therefore relate to matters relating to qualification. 80. The Dental Council may frame rules for carrying out the purposes of this chapter. The Rules must therefore be read as meant to carry out the purpose mentioned, unless they show otherwise. Clauses (g) and (h) of Sub• section (2) therefore relate to matters relating to qualification. 80. The regulations framed and published by the Dental Council of India which have been brought to our notice are contained in a booklet issued by the Dental Council of India itself. It appears from the preface that the first part contains what are termed as “Regulations for the Degree of Bachelor Of Dental Surgery (B.D.S.)”; the second part contains “Regulations for the Degree of Bachelor of Dental Surgery (B.D.S.) for Medical Graduates”; the third part contains the “Basic principles for maintenance of minimum educational standards for the profession of Dentistry”; and the fourth part deals with “Syllabus for the B.D.S. Course”. It is significant to note that the first two parts have been termed as “Regulations” whereas the third and fourth parts have not been so termed. It is doubtful, therefore, whether these basic principles are intended to be “regulations”. 81. Assuming they are so, it is significant that in the regulations in the first and second parts providing for the Degree of Bachelor of Dental Surgery, the language used throughout is imperative. For the sake of illustrating the point, the first regulation lays down that “an examination for the Degree of Bachelor of Dental Surgery shall be held twice a year.... The Examination shall consist of four parts titled respectively the First, Second, Third and Final B.D.S. Examinations....” Section 2 of this Regulation says : “The Examination shall be open to a student who (a) has been enrolled during one academic year....” In all the clauses the word “shall” has been used. This is also the case with the regulations for the Degree of Bachelor of Dental Surgery for the Medical graduates. In these regulations the Council has prescribed the nature of examination, the time when they are to be held, the qualification of a student to whom the examination shall be open, the manner in which his application shall be forwarded, the marks which shall be allotted at such examinations and various other relevant matters. In these regulations the Council has prescribed the nature of examination, the time when they are to be held, the qualification of a student to whom the examination shall be open, the manner in which his application shall be forwarded, the marks which shall be allotted at such examinations and various other relevant matters. One, however, notices the distinction in the language employed in respect of “the basic principles for maintenance of minimum educational standards for the profession of Dentistry”. Here it has been clearly laid down in the beginning that “In ORDER :to regularize and standardize the conferment of dental degrees, it is recommended that………..” whatever may be said with regard to the binding nature of the first two regulations relating to the Degree of Bechelor of Dental Surgery, it is quite clear that all that the Dental Council wishes to do in respect of the maintenance of minimum educational standards is to formulate basic principles and make a recommendation that such basic principles should be accepted by all authorities in a State which confer dental qualifications. In view of the clear statement regarding these being recommendations it is difficult to say that they are intended to be of a mandatory nature. 81. It is also significant that all the provisions contained herein are couched in language which suggest their being recommendatory rather than mandatory, for instance, “1. Dental Faculties should be established in all the Universities....” The word “should” deserves notice because in all other provisions which follow it is this word which has been used. The next one, recommendation no. 2 says – “Dental Colleges should be directly affiliated to a University,” The other recommendations read as follows: “3. The course of studies should extend over a period of four academic years. 4. A separate course may be arranged for medical graduates... 5. There should be : (a) Uniformity in curriculum standards....... 6. No candidate should be allowed to begin the dental curriculum proper, until........” 83. What we are directly concerned with is Clause 8 of these basic principles which relates to minimum staff for a Dental College. There are three columns therein – (1) Designation, (2) Number of posts, and (3) Minimum basic qualifications and teaching experience required for appointment of the dental staff. What we are directly concerned with is Clause 8 of these basic principles which relates to minimum staff for a Dental College. There are three columns therein – (1) Designation, (2) Number of posts, and (3) Minimum basic qualifications and teaching experience required for appointment of the dental staff. Again, it will be noticed that for the one post of Principal/Dean/Director of Dental Studies it is required that the candidate “should have a recognised degree of B.D.S....” In the case of Professor the number of posts is seven and in respect of the qualification it is laid down : “should possess the same qualifications as mentioned above with a post-graduate qualification....” In the case of Assistant Professor, Reader or Senior Lecturer, eight posts are mentioned and in respect of qualification it is said “8hould possess the same qualifications as mentioned above with three years’ teaching experience”. In the case of Junior Lecturers, Tutors, Demonstrators it is said that the number of posts “should be as per Note 4, 5 and 6”. In respect of qualification again the word “should” is used. In view of the language employed in Clause 8 and other different clauses which is in conformity with the opening words “it is recommended”, it is quite obvious that the Dental Council of India has merely laid down in Clause 8 the basic principles in respect of the number of posts and the qualification which a person should have in ORDER :to be appointed to such posts only by way of recommendation. At the foot of these recommendations in Clause 8 there is a note which reads thus : “When candidates with requisite teaching experience are not available a reference should be made to Dental Council of India to condone the same.” This note also is said to be a part of the regulations and to be mandatory in nature. It is difficult to accept this contention. This is in the shape of a note. When the qualification which a person should possess is itself a matter A of recommendation it is difficult to understand how this note, which may not be strictly termed as a part of the regulation, can have a binding or mandatory nature. 84. It is difficult to accept this contention. This is in the shape of a note. When the qualification which a person should possess is itself a matter A of recommendation it is difficult to understand how this note, which may not be strictly termed as a part of the regulation, can have a binding or mandatory nature. 84. Apart from the language employed in respect of the basic principles for maintenance of minimum educational standards, and assuming they are “regulations”, the question arises whether from their contents it can be gathered that they are intended to be mandatory and not recommendatory. It is difficult to accept that the number of posts recommended are meant to be strictly adhered to by authorities concerned and any variation in them would be having penal consequences. Even in respect of qualifications, they do not seem to be rigid requirements, for the note to Clause 8 itself takes note of cases of lack of qualification and its condonation. Obviously, therefore, they must be deemed to be only directory provisions. 85. Another well accepted test for judging the mandatory nature of a statute or statutory rule may be employed. The regulations themselves do not provide for any penalty for a violation of any of these basic principles. Even in the Act there is no provision other than the one contained in Section 16 which may be construed to be a penalty prescribed for breach of any of the regulations framed by the Dental Council. It will be relevant to notice Section 16 of the Act which relates to “withdrawal of recognition” in certain cases contained in Clauses (8) and (b) of Sub-section (1) thereof. Reading Sub-section (3) of this section one finds that in such cases the Dental Council may ultimately “declare that the qualification granted by the authority or institution shall be a recognised dental or dental hygiene qualification only when granted before a specified date” Subsection (4) entitles the Council to “declare that any recognised dental or dental hygiene qualification granted outside the States shall be recognised as such only if granted before a specified date”. It will appear from these two Sub-sections that ultimately it is the right of the Council in respect of recognition of the qualification, that comes into play. It will appear from these two Sub-sections that ultimately it is the right of the Council in respect of recognition of the qualification, that comes into play. I am, therefore, led to the conclusion that even though an authority in a State may not accept the regulations of the Dental Council, the only effect can be a non-recognition by Dental Council of any dental or dental hygiene qualification conferred by such authority. This leads to the further conclusion that although a person whose qualification is not recognised by the Dental Council may not be able to practise the profession of dentistry, the degree obtained by him remains unaffected except in the matter of its utility in that respect. It cannot, therefore, be said that noncompliance with the regulations results in the invalidity of the degree obtained by a person from an institution not following the basic principles laid down by the Dental Council of India. The result is that neither the Act nor the regulations framed by the Dental Council contain any penalty for breach of the provisions thereof. In view of these considerations it is difficult to hold that the provisions are mandatory. 86. In view of the conclusion which have arrived at regarding the recommendatory nature of the regulations, it is not possible to accept the petitioner's objection to the effect that the appointment of Dr. Ram is illegal on the ground that the shortage of his teaching experience could not be condoned by the State Government in violation of the mandatory provision of the regulation referred to above. 87. The learned Advocate General has urged that the regulations could not by their very nature be mandatory in view of the fact that it is within the exclusive jurisdiction of the State Legislature to enact legislation appertaining to education and although legal, medical and other professions was an item in the concurrent list, the Central Legislature could not trench upon the reserved field of the State Legislature. He has further urged that if we were to hold these regulations to be mandatory we should also hold that the regulations trench upon the jurisdiction of the State Legislature and are therefore, ultra vires and to the extent of the repugnancy void. He has further urged that if we were to hold these regulations to be mandatory we should also hold that the regulations trench upon the jurisdiction of the State Legislature and are therefore, ultra vires and to the extent of the repugnancy void. In view of the fact that I have come to the conclusion that they are not mandatory, I do not feel called upon to decide the point raised by the learned Advocate General. 88. Another argument which is relevant to this question may be noticed here namely, that even though the regulations be directory they could not be disregarded altogether by the State Government and should have been complied with substantially. In this connection it has also been pointed out that the State Government by its declared policy made in the year 1966 had decided that “in future no relaxation should be made in the criteria laid down by the Dental Council of India in matters of academic qualification and experience and all appointments should be made strictly according to the criteria of the Dental Council of India”. It is urged that in view of this accepted policy of the Government it was not open to them to depart from it in the present case. 89. With regard to the first contention there is no doubt that even though the basic principles laid down by the Dental Council may be recommendatory, the State Government could not ignore them altogether. It is well settled that even recommendatory provisions contained in a statute or a statutory rule laying upon Government certain duties must be complied with substantially. In the instant case it is not that the State Government has chosen to ignore them and refused to comply with them to any extent at all. The basic recommendation relevant to the present case is that for the post of a lecturer a person must have a post graduate dental qualification and three years' teaching experience. The State Government seem to have accepted this policy and made this the criterion for making appointments. What they have not followed is the recommendation contained in the note, namely, to refer the shortage of teaching experience for condonation to the Dental Council. If this recommendation is merely directory and if it has not been accepted it cannot be said from this alone that there has been no substantial compliance with the regulations. 90. What they have not followed is the recommendation contained in the note, namely, to refer the shortage of teaching experience for condonation to the Dental Council. If this recommendation is merely directory and if it has not been accepted it cannot be said from this alone that there has been no substantial compliance with the regulations. 90. With regard to the second contention it appears that in fact it was only once before, at the time of appointment of Dr. P. N. Gupta in November, 1964, that the State Government had referred to the Dental Council his case for condonation of shortage of the period of qualifying teaching experience. No other case of any candidate for appointment to any post in the Dental College seems to have been referred to the Dental Council for the said purpose. Besides, the policy of the Government quoted above substantially binds them only to follow the regulations of 'the Dental Council in respect of the criteria laid down by them for appointment to posts in the Dental College. It would, in my view, be adding to the words quoted above if they are to be deemed to contain also a decision to refer to the Dental Council all cases of shortage of teaching experience for condonation. It may be noticed that in no case after the aforesaid declared policy, was such a matter referred to the Dental Council and that in all Cases where the candidate did not have the requisite teaching experience the State Government themselves condoned the shortage. Such a case was that of Dr. Chandra who did not have the requisite teaching experience for being appointed a Principal of the Dental College. The argument that the State Government are bound to refer the matter to the Dental Council in view of its declared policy is, therefore, of no avail to the petitioner. 91. It may also be mentioned that if the State Government had been referring similar cases to the Dental Council and not referred the present case of Dr. Ram, an argument could, perhaps, be justifiably made that the Government have acted according to their whim in the present case and departed from a principle accepted by them and thus exercised a power in bad faith. In view of the consistent conduct of the State Government in respect of all cases alike this argument is not open to the petitioner. In view of the consistent conduct of the State Government in respect of all cases alike this argument is not open to the petitioner. 92. Another point has been raised by learned counsel for the petitioner, namely, that the regulations framed by the Dental Council are binding on the State Government in view of the fact that they were framed in consultation with the State Government under the provisions of Section 20 of the Act. I am not prepared to accept the proposition of law urged that the fact of consultation binds a party to the transaction or that on the principle of estoppel the party concerned cannot act against it. Consultation by itself does not mean that the decision has been accepted by the party consulted, and therefore there would be estoppel by conduct. To say, that since the Government had been consulted the regulations framed are binding on them, is going much beyond the mark. It is quite c1ear that where a party has the right merely to be consulted, it cannot claim the right to have the final say in the matter. Consultation is merely for the purpose of affording an opportunity to the party concerned to give out its views. Let us imagine a hypothetical situation. Suppose the Government of Bihar had been consulted but had not agreed to certain provisions of the regulations and yet in view of majority of States in this country agreeing to it the Dental Council had stuck to such a provision and the Central Government had approved such regulations, would it mean that by the mere fact that the Government of Bihar had been consulted, the regulations, would be binding on them for that reason? The answer is obvious. I am, therefore, unable to hold that consultation with the Government of Bihar had the effect of making the regulations binding on them, even though they were recommendatory in nature. This argument must, therefore, be repelled. 93. Another ground of attack by the petitioner is that the State Government had not consulted the Public Service Commission in the matter of appointment of Dr. Ram and, therefore, his appointment is illegal. It is urged that the present case being admittedly one of promotion from the post of Tutor to the post of Lecturer, in view of Rule 7 of the Bihar Public Service Commission (Limitation of Functions) Regulations, 1957. Ram and, therefore, his appointment is illegal. It is urged that the present case being admittedly one of promotion from the post of Tutor to the post of Lecturer, in view of Rule 7 of the Bihar Public Service Commission (Limitation of Functions) Regulations, 1957. read with Article 320 (3) (b) of the Constitution it was obligatory on the State Government to do so. These regulations have been framed under Article 320 (3) of the Constitution. Regulation 7 reads thus : “When appointment to a service or a post is made by promotion or transfer from another service, it shall not be necessary to consult the Commission unless it is proposed, by such promotion or transfer, to fill – (a) a permanent post substantively, or (b) a permanent post or a temporary post on an officiating or temporary basis for a period exceeding six months : Provided that, if an appointment is made for a period not exceeding six months, and it is subsequently proposed to extend the period so that it will exceed six months to extend months in all, the Commission shall he consulted.” This argument is untenable in view of the fact that it is now well settled chat the requirement in respect of consultation with the Public Service Commission is not mandatory and the failure to consult the Commission cannot result in the appointment made without consultation being illegal. If Article 320 (3) of the Constitution is itself directory the regulations framed thereunder cannot be mandatory. The Supreme Court held in the case of (1) State of U.P.V. Manbodhan Lal (A.I.R. 1957 Supreme Court 912) that the provisions of Article 320 (3 ) (c) of the Constitution are not mandatory and non-compliance with its provisions does not afford a cause of action to a civil servant in a Court of Law. Their Lordships were concerned in that case with a disciplinary matter and it, therefore, fell under Sub-clause (c) of Clause (3) of Article 320. But that is only one of the matters which are enumerated in the aforesaid Article in respect of which the Public Service Commission, it is laid down, shall be consulted. In view of the Supreme Court decision it is difficult to make a distinction between the subject matters of Sub-clause (b) and Sub clause (c) for the purpose of application of the principle laid down by their Lordships. In view of the Supreme Court decision it is difficult to make a distinction between the subject matters of Sub-clause (b) and Sub clause (c) for the purpose of application of the principle laid down by their Lordships. The right to be consulted is by virtue of the same Clause 3 of the aforesaid Article. It cannot. therefore, be urged that the decision of the Supreme Court being directly in respect of Clause (c) it is not applicable to a matter contained in Sub-clause (b) In yet another case (2) Ramgopal Chaturvedi V. State of Madhya Pradesh (A.I.R. 1970 Supreme Court 158) the Supreme Court relied on its previous decision referred to above and reiterated the same principle. 94. In this connection it may be mentioned that it is not the case of the petitioner that his own appointment or the appointment of Dr. Ram as a Tutor were made after such consultation. Nor is it his case that the appointment of any other member of the teaching staff of the Dental College was made after consultation with the Public Service Commission. Nor is it the case of the petitioner that in the matter of promotion of any member of the staff of the Dental College the Public Service Commission had been consulted. It is thus obvious that the State Government have not been consulting the Public Service Commission either in the matter of appointment or in the matter of promotion of members of the staff of the Dental College. In fact it has been stated on affidavit on behalf of the State Government that they have not been consulting the Public Service Commission in such matters. This statement has not been refuted. If, therefore, Dr. Ram’s appointment would be illegal on that account the petitioner's initial appointment to the post of Tutor itself would be illegal for the same reason. Considering the matter from this point of view, it cannot even be said that there has been any discrimination or any favour shown to Dr. Ram. I am, therefore, unable to take any view other than that there is no merit in this contention of the petitioner. 95. I will now consider the grievances of the petitioner, namely, (1) that although he was senior in cadre to Dr. R.P. Singh and Dr. Ram. I am, therefore, unable to take any view other than that there is no merit in this contention of the petitioner. 95. I will now consider the grievances of the petitioner, namely, (1) that although he was senior in cadre to Dr. R.P. Singh and Dr. P.N. Gupta, they were appointed Lecturers while he was in U.K. and his seniority was ignored, and (2) that although he was senior in cadre to Dr. Ram, holds a superior qualification and has in fact a longer teaching experience, his case has not been honestly considered. One of the reasons assigned for such non-consideration is mala fides on the part of the Government and the then Chief Minister. The question of mala fides I leave for the present to be considered together at a later stage in respect of different allegations. For the present I confine myself to the claims enumerated here and their non-consideration, if any. 96. It is not disputed that the petitioner is senior in cadre to Dr. Singh and Dr. Gupta. But it must be noted that the petitioner had not joined the Dental College at all and was working only as a Dental Surgeon and went to U.K. for higher studies and after his return joined as Tutor. It cannot be said that every Dental Surgeon in the cadre of the Health Service had, on account of his seniority, the right to be considered for appointment as Tutor in the Dental College. There is nothing to show that the petitioner had applied for it, while he was in U.K. and his claim was ignored. There is thus no substance in this grievance. 97. There is no doubt that the petitioner is nearly seven years' senior to Dr. Ram in the cadre of the Bihar Health Service. With regard to the second claim that his qualification is superior to that of Dr. Ram, reliance has been placed by the petitioner on Annexure 25, a document in which the State Government is said to have laid down “criteria for appointment as Tutor in the Darbhanga Medical College”. It appears therefrom that post-graduate qualifications such as F.R.C.S., M.R.C.P. etc. have been rated higher than M.S. or M.D. degrees, because in the matter of evaluation six marks have been assigned for F.RC.S., M.R.C.P. and M.R.C.O.G. whereas only four marks have been assigned for M.S. or M.D. degrees. It appears therefrom that post-graduate qualifications such as F.R.C.S., M.R.C.P. etc. have been rated higher than M.S. or M.D. degrees, because in the matter of evaluation six marks have been assigned for F.RC.S., M.R.C.P. and M.R.C.O.G. whereas only four marks have been assigned for M.S. or M.D. degrees. The State Government have not denied the authenticity of this document nor have denied that this principle was accepted in respect of appointment. It is, however, said that this applied to the Darbhanga Medical College and not to the Patna Dental College. It is difficult to understand why the evaluation of the same degree or diploma should be different in cases of appointments to different colleges. It has not been brought to our notice that the State Government have in any particular case or cases treated the post-graduate qualifications M.D. and F.R.C.S. on Equal footing. It has not been shown either that there is any decision of Government to the effect that the same qualification would be assigned different value in cases of appointments to different colleges. In my view, there would be no rational ground for doing so and even if there were a decision of the State Government to show that the value of F.R.C.S. is one for the purpose of appointment to the Medical College and another for the purpose of appointment to the Dental College, it would seem to be irrational. One can understand that different qualifications may be required for appointments to different colleges. But one cannot understand how a Fellowship of the Royal College of Surgeons can be evaluated one way in one case and in a different way in another. It may be mentioned that admittedly F.D.S.R.C.S. (Fellow in Dental Surgery of the Royal College of Surgeons) is equivalent to its F.R.C.S. (fellowship in general surgery). The answer given by the State of Bihar seems to me unacceptable. 98. It has been next pointed out that it appears from the Schedule to the Dentists Act that both these postgraduate qualifications are at par with each other. The schedule gives a list of recognised dental qualifications. The answer given by the State of Bihar seems to me unacceptable. 98. It has been next pointed out that it appears from the Schedule to the Dentists Act that both these postgraduate qualifications are at par with each other. The schedule gives a list of recognised dental qualifications. Part I contains “degrees or diplomas in dentistry issuued by any of the following authorities : x x x (3) University of Bombay” Part II contains “degrees or diplomas in dentistry issued by the following authorities : x x x (5) The Royal College of Surgeons, Edinburgh” It is said that this should be read together with Clause 8 of the basic principles which require that for the post of a Lecturer a person “should possess the same qualifications as mentioned above with three years’ teaching experience”. The qualifications “mentioned above” have to be found from the case of the Principal and Professor. In the case of Principal, it is as follows : “Should have a recognised degree of B.D.S. of an Indian University or a qualification included in Part II of the Schedule to the Dentists Act, 1948 with the exception of........” In the case of Professor, it is laid down that the candidate “should possess the same qualification as mentioned above with a post-graduate qualification in the subject....” It is, therefore, urged that in view of the fact that M.D. of Bombay and F.R.C.S of Edinburgh both are mentioned in Parts I and II of the Schedule, they must be treated to be at par. I am unable to accept this argument because it appears to me to be fallacious. 99. Sub-section (1) of Section 10 of the Act lays down that the qualifications included in Part I of the Schedule shall be recognised dental qualifications. Sub• section (3) lays down that the qualifications included in Part II the Schedule shall be recognised dental qualification. The purpose of the schedule, therefore, in view of Section 10 is merely to give the list of rccognised dental qualifications. Merely be cause both a Master's degree in Dental Surgery of the Bombay University and the Fellowship of the Royal College of Surgeons of Edinburgh in Dental Surgery have been held to be recognised riental qualifications, it cannot be urged that they must be treated alike. Merely be cause both a Master's degree in Dental Surgery of the Bombay University and the Fellowship of the Royal College of Surgeons of Edinburgh in Dental Surgery have been held to be recognised riental qualifications, it cannot be urged that they must be treated alike. As I have said and it bears repetition that the purpose of Section 10 and the Schedule is recognition and not evaluation. It appears from the regulations that for the post of Principal a candidate “should have a recognised degree of B.D.S. of an Indian University or a qualification included in Part II of the Schedule....” Can it, therefore, be said that the post-graduate qualifications included in Part II of the Schedule which includes Fellowship of the Royal College of Surgeons, Edinburgh, are equal in value to Bachelor's degree of an Indian University? It appears that Part II of the Schedule also mentions degrees or diplomas in dentistry issued by the Punjab University, the Punjab State Medical Faculty, the Universities of Durham, London, Manchester etc. Can it be said that even a Master's degree in Dental Surgery issued by any of these universities would have the same value as the Bachelor's degree in Dental Surgery granted by the University of Bombay? Part I of the Schedule merely mentions degrees or diplomas granted by the University of Bombay. Let us suppose that the Bombay University has granted a B.D.S. degree to a person whereas the University of London has granted a M.D.S. degree to a person. Can it be said that because both have been recognised in Parts I and II of the Schedule, they must be treated as having the same value. This would, in my opinion, be absurd to suggest. I am, therefore, unable to come to the conclusion that because Parts I and II of the Schedule of the Act mention both the M.D.S. of Bombay and F.D.S.R.C.S. of Edinburgh they must be treated to have the same value. There can thus be little doubt that in the absence of anything to show that the two degrees have been evaluated as equal and in view of the fact that the State Government themselves have evaluated them differently holding the Fellowship of the Royal College of Surgeons to be superior, it must be held that the petitioner had a qualification superior to that of Dr. Ram. 100. Ram. 100. I will do well at this stage to dispose of the claim by the petitioner to preference on these two grounds, viz., seniority and better qualification. The stand of the Government of Bihar in respect of this matter is that for the purposes of seniority of a person occupying a teaching post the date from which he holds a teaching post is taken into consideration and not the date of entry into the cadre of the service. The petitioner has, however, referred to several cases of doctors where, according to him, seniority in cadre and not the length of teaching experience was adopted as the determining factor by the Government themselves. These are the cases of Dr. Dastidar V. Dr. Ghosal, Dr. T.B. Gupta V. Dr. Mohsin, Dr. S.K. Sinha V. Dr. U.N. Shahi and Dr. K.C. Prasad V. Dr. Mohan Mishra. The answer of the State of Bihar is that all these cases except that of Dr. K.C. Prasad, were of the period prior to 1954 in which year the Government decided that length of teaching experience and not seniority in service will be the criterion for appointment to teaching posts. The Government further decided, it is said, that seniority in cadre would prevail only between officers having equal teaching experience. In their counter-affidavit Cases of six doctors, namely, Drs. Sarkar, Thakur and Choudhary of the Darbhanga Medical College and Drs. Tiwary, Verma and Sinha of the Ranchi Medical College, have been cited, where although they were junior in cadre service to others, they were appointed to the teaching posts in view of their longer teaching experience. There is an explanation given for the appointment of Dr. K.C. Prasad, namely, that if there had not been delay in taking a decision he would have had longer teaching experience than Dr. Mishra. It cannot, therefore, be said that the Government, have acted discriminately against the petitioner. The question thus reduces itself to one whether the policy accepted by the Government in this behalf can be said to be perverse or absurd or such as no reasonable man would adopt. It is well settled that this Court cannot act as a court of appeal and correct the errors of policies of Government. The question thus reduces itself to one whether the policy accepted by the Government in this behalf can be said to be perverse or absurd or such as no reasonable man would adopt. It is well settled that this Court cannot act as a court of appeal and correct the errors of policies of Government. The Court has, however, the jurisdiction to interfere if it appears that what is termed as a policy of the Government is absurd and bound to result in miscarriage of justice. I am afraid this Court cannot quarrel with the policies of the Government if they may be reasonable even though not correct. It is, therefore, not possible to hold that seniority in cadre service of this petitioner should have been the determining factor. 101. With regard to academic qualification, again it is said on behalf of the State of Bihar that it is taken into consideration at the time of initial appointment. The policy of the Government in this respect is said to be that at the time of promotion they take into consideration seniority according to the length of the teaching experience. Again this policy means that for the purposes of promotion it is the principle of seniority-cum-merit which is accepted by the Government. Obviously thus where two persons have the same length of teaching experience the one who has better qualification would be preferred but ordinarily a senior teacher would not be superseded merely because one junior to him has better qualifications. It cannot again be said that this principle adopted by the State is unreasonable or perverse. Even on this ground, therefore, the petitioner's contention must fail. 102. Now remains the question of length of teaching experience. The grievance of the petitioner is two-fold : (1) that the period during which he was working as an Honorary Demonstrator in the Lucknow University and (2) the period during which he was put on supernumerary duty should have been counted towards his teaching experience. The petitioner's case is that in respect of other doctors teaching experience in other institutions had been counted and teaching experience has been allowed to some others even during the period they were put on supernumerary duty. With regard to the first part he has cited the cases of Dr. A.N. Sinha and Dr. B.K Verma, with regard to the latter he has cited the cases of Dr. With regard to the first part he has cited the cases of Dr. A.N. Sinha and Dr. B.K Verma, with regard to the latter he has cited the cases of Dr. R.N. Chatterji (of the Dental College) and Dr. Sishupal Ram, Dr. Lakhan Lal, Dr. A.K.N. Sinha, Dr. H.N. Verma, Dr. M. Rohatgi, Dr. Sharda Prasad Sinha. Dr. Anant Prasad Singh and Dr. Navin Prasad Singh, who were on supernumerary duty during different periods and those periods were counted towards their teaching experience. 103. To take up first the question regarding teaching experience while he was on supernumerary duty the answer given by the State of Bihar is that such doctors were allowed teaching experience because they were actually doing teaching work and there were certificates granted by the Principal of the College to that effect and they were also attached to the College, whereas in the case of the p3titioner he was neither attached to the Dental College during the aforesaid period nor did he in fact do nay teaching work. He was it is said in fact put on the waiting list for the purpose of his posting from the 19th November, 1965 to the 5th February. 1966 and that even after his posting as a Tutor since he could not join and take charge until the 21st of February, 1966, he had done no teaching work and, therefore, the question of counting the period towards his teaching experience did not arise. The petitioner himself does not claim to have done actual teaching work during the period upto the 9th February, 1966. On that date he joined the post but charge was not given to him until the 21st of February, 1966. Thus, if the policy of Government to allow teaching experience only on the basis of actual teaching work were not perverse, this Court cannot hold that the rejection of the representation of the petitioner in this behalf was perverse. It is true that upto the 9th February, 1966 he had not joined as Tutor at all, but during the period between the 9th and the 21st of February, 1966, he having reported himself for duty and having joined the post of Tutor, if teaching work was not taken from him it was not the fault of the petitioner and it was open to the Government to count that period towards his teaching experience. The Failure to do so, however, in my view, cannot be said to be the result of a perverse decision. The petitioner cannot, therefore, succeed on this ground. 104. Coming now to his claim with regard to the teaching experience at Lucknow the State Government have said that there is no precedent at all where they have ever recognised the honorary teaching experience of a person not in the service of the Government of Bihar, and that as a matter of principle they do not accept teaching experience in honorary capacity. They have further said that the Government do not even recognise honorary service of medical officers working in State hospitals for the above post unless and until they have completed one year of service in State Health Service. Much argument has been made on this aspect of the petitioner’s case and effort has been made to show that the decision of Government in rejecting the relevant representation is absolutely untenable and unreasonable. It is not disputed there has been no precedent where such honorary teaching experience has been recognised. It is, however, said that that all that is required by the rules of the Dental Council is that a person must have teaching experience and that the Dental Council has made it clear that it should be experience of teaching in a Dental College and, therefore, any such experience gained anywhere in any institution ought reasonably to be recognised and counted for the purpose of finding out the length of teaching experience required. It is true that the rules do not show that such teaching experience must be gained while the candidate is in the service of the appointing authority from before. It is also true that the petitioner had teaching experience as Demonstrator in a Dental College. Even so, it is a question of discretion to be exercised by the State Government as to whether they should recognise, for the purpose of appointment and promotion, teaching experience gained in an honorary capacity in an institution outside the State and before he entered into the service of the Government. It cannot be said that there can be one reasonable view and one alone that such experience should be recognised. The other view was open to be taken by the Government and it cannot be said that it was taking an absolutely unreasonable or pervcrse view in the matter. It cannot be said that there can be one reasonable view and one alone that such experience should be recognised. The other view was open to be taken by the Government and it cannot be said that it was taking an absolutely unreasonable or pervcrse view in the matter. The State has also sought to distinguish the cases of Dr. A.N. Sinha and Dr. B.K. Verma which were cited in this connection. It is said that Dr, Sinha was in the service of the State Government and was on deputation to the All India Institute of Medical Science. Dr. Verma, it is said, was a Teacher in the Patna University and his case was governed by Section 52 of the Patna University Act and his teaching experience while in the service of the Patna University had, therefore, to be recognised. There is no denial by the petitioner that these distinguishing features exist. These two cases cannot, therefore be taken as precedents nor can they be used for the purpose of showing that the petitioner has been discriminated against. 105 It will thus appear from what has been stated above that the petitioner’s grievance to the effect that his seniority and superior qualification have been dishonestly ruled out of consideration and that his teaching experience of the Lucknow period has been similarly excluded from consideration, is not substantiated. It has not been shown that the State Government acted discriminately and, therefore, violated the constitutional guarantees under Article 14 or Article 16 of the Constitution. It has not been shown either that their conclusions are such as to clearly show that they are absurd or arrived at without consideration of relevant matters or on consideration of irrelevant matters. 106. The tests to be employed in judging the nature of an act of a public body for the purposes of issue of writs are well settled. In (8) Smith V. East Ello Rnral District Council and others (1956 Appeal Cases 736 at p. 762) Lord Reid agreed with the analysis made by Lord Greene M.R. in (9) Associated Provincial Picture Houses Ltd. V. Wednesbury Corporation [(1948) 1 K.B. 223] and quoted the leading passages in Lord Greene’s JUDGMENT : which are as follows : The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to these matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germans to the matter in question, the authority must disregard these irrelevant collateral matters........a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and of ten is said, to be acting ‘unreasonably’........ It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right : but to prove a case of that kind would require something overwhelming........ The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account, or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the Court can interfere. In such a case, again, I think the Court can interfere. The power of the Court to interfere in each case is not an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.” In the case of (10) Short V. Poole Corporation [1926 (1) Chancery Division 66] Pollock M.R. says at page 85 : “The appellants do not contest the proposition that where an authority is constituted under statute to carry out statutory powers with which it is entrusted there are cases which show that if an attempt is made to exercise those powers corruptly as under the influence of bribery, or mala fide for some improper purpose such an attempt must fail. It is null and void : See Reg. V. Governors of Darlington School (6 Q. B. 682, 715). So also of attempts to act ultra vires : see Rex V. Board of Education [(1910) 2 K.B. 165]. But these same cases indicate that where the Tribunal has exercised the discretion entrusted to it bona fide, not arbitrarily or illegally the Courts cannot interfere. No doubt, where a discretion is given to justices or other local bodies, it must be exercised and not refused : see Reg. V. Admason [(1875) 1 Q. B.D. 201] : Reg. V. Vestry of St. Pancras (24 Q. B.D. 371); and Rex V. London County Council [(1918) 1 K.B. 68]. But where it is exercised the Courts are slow to interpret their Killowen C.J. in Kruse V. Johnson [(1898) 2 Q. B. 91, 99, 100].” Again at Page 88 his Lordship says : “Where a discretion is given to the local authority, it is for that authority to exercise it, provided that its action is not ultra vires nor its powers exercised corruptly or mala fide. where the exercise of the discretion is challenged, it is for the plaintiff to prove that there is a duty in the Courts to interfere upon the grounds already stated. In my JUDGMENT : no such proof has been established in the present case. where the exercise of the discretion is challenged, it is for the plaintiff to prove that there is a duty in the Courts to interfere upon the grounds already stated. In my JUDGMENT : no such proof has been established in the present case. The authority may appear to be right or may appear to be wrong in the course they have adopted, according as that course may be subjected to criticism from one point of view or another. Upon such discussion and criticism it is not for the Courts to pronounce. So long as the discretion has been exercised and the limits of discretion are not passed, the decision rests with the local authority.” Warrington, L. J. in the same case says at page 91 : “My view then is that the only case in which the Court can interfere with an act of a public body which is, on the face of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the references in the JUDGMENT :s in the several cases cited in argument to bad faith, corruption, alien and irrelevant motives, collateral and indirect objects, and so forth, are merely intended when properly understood as examples of matters which if proved to exist might establish the ultra vires character of the act in question. In the case of (5) S. Partap Singh V. State of Punjab (A.I.R. 1964 Supreme Court 72) it was held (page 83) : “.... The Constitution enshrines and guarantees the rule of la wand Article 226 is designed to ensure that each and every authority in the State, including the Government acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual. It is with these considerations in mind that we approach the facts of this case.” 107. Judged in the light of the principles aforesaid the petitioner has not been able to establish that the rejection of his representations was based on a non-consideration of his seniority in cadre service or his superior qualification or his longer teaching experience. It has not been established that the consideration was dishonest and that, therefore, there was no consideration at all. It has not been established that the consideration was dishonest and that, therefore, there was no consideration at all. It has also not been shown that the State Government have not taken into consideration any relevant matters or have taken into consideration any extraneous matter for the purpose of arriving at the conclusions. It has not been shown either that the State Government were bound by any statute or rule not to act in the manner they acted or that they have Exercised a discretion vested them in such a manner as to show that they acted arbitrarily. It is true that a view different from the one taken by the State Government was possible in the Circumstances of the present case in respect of the petitioner's claim for promotion. But on that ground alone it cannot be said that this Court will interfere with the exercise of the discretion in the manner it has been exercised. It must be said that the decision of the State Government is not so unreasonable as to 1ead to the conclusion that no reasonable authority could ever have come to it. The acts of the State Government seem to be within their power and they have Exercised that power in a particular way and it is not possible for this Court in the circumstances of the present case to hold that the power has been exercised in such a manner as to show that it is ultra vires. It cannot even be held that the acts of the State Government were an abuse or misuse of power. I am, therefore, led to the only conclusion possible in the circumstances of this case that the petitioner's contention in this behalf must be overruled. 108. Now remains to be considered the most important ground of attack against the impugned ORDER :s, namely, that they are tainted with mala fides. The circumstances pointed out by the petitioner to prove malafide on the part of the State Government are the following. Firstly, it is said that respondent no. 5 was appointed as a Tutor in the year 1964 without having one of the requisite qualifications for such appointment, namely, two years’ cadre service. The circumstances pointed out by the petitioner to prove malafide on the part of the State Government are the following. Firstly, it is said that respondent no. 5 was appointed as a Tutor in the year 1964 without having one of the requisite qualifications for such appointment, namely, two years’ cadre service. Secondly, it is pointed out that the representations of the petitioner in respect of his claim for promotion made on the 14th April, 1966 and the 20th July, 1966 were purposely kept undisposed and were rejected only on the 21st of February, 1967 when the Government knew that Dr. Ram was to return soon after with a postgraduate qualification. Thirdly, it is said that although there were two vacancies available, one on account of Dr. Gupta going on leave from the 3rd October, 1967, and the other on account of the promotion of a Lecturer to the post of Professor, the Government did not appoint the petitioner to either of these vacancies and appointed only the respondent so as to give him a claim to the post of Lecturer by virtue of his previous experience in the aforesaid post. Fourthly, it is pointed out that his representation for the counting of his teaching experience at Lucknow made on the 6th May, 1967 was rejected on the same day, namely, 25th of January, 1968, on which date the respondent was appointed to the post of Lecturer. Fifthly, it is said that his representation in respect of teaching experience during supernumerary duty was not disposed of at all until the 5th of March, 1968, long after the appointment of Dr. Ram. The most important circumstance pointed out is that although the ministry of Shri Mahamaya Prasad Sinha had fallen or was likely to fall the aforesaid ORDER :of appointment] was passed by him mala fide with a view to help the respondent who is the son of Dr. Dukhan Ram, a close friend of Shri Sinha, and the notification was rushed through the same day and it appears that on its basis the respondent joined the post that very day. 109. Dukhan Ram, a close friend of Shri Sinha, and the notification was rushed through the same day and it appears that on its basis the respondent joined the post that very day. 109. By his petition for amendment of the original application after the passing of the final ORDER :dated the 25th of June, 1968, appointing the respondent no 5 in the vacancy in the regular post of Lecturer, the petitioner made out a few other grounds in support of his allegation of mala fides. Firstly, it is said that although a prayer for stay was pending in this Court, the Government made the substantive appointment on the 25th of June, 1968. Secondly, that since there was no regular vacancy available on the 25th of January, 1968, the Government went to the extent of appointing Dr. R.P. Singh retrospectively so as to have a vacancy in his chain available on the 25th of January, 1968 to which the fifth respondent could be appointed. Thirdly, that although the Government have no authority to pass an ORDER :retrospectively, it did so mala fide appointing him with effect from the 25th of January, 1968. 110. Before I enter into a discussion of the various allegations, it will be relevant to state the principles laid down in various decisions which may be kept in mind in judging the allegations of mala fides. In the case of (11) Errington V. Metropolitan District Railway Company [(1882) 19 Chancery Division 559] Jessel, M.R. said [at page 571] : “...Now, of course, you can shew want of bona fides in two ways. You may shew it by proving that the lands are wanted for some collateral purpose as a fact, or you may shew it by proving that the alleged purpose is so absurd, under the circumstances, that it cannot possibly be bona fide....” In this case their Lordships were concerned with the question of purchase of land by a Railway Company under the Lands Clauses Act, 1845. In the case of (8) Smith V. East Elloe Rural District Council (Supra) Lord Somervell of Harrow says (at page 770) : “Mala fides is a phrase often used in relation to the exercise of statutory power. It has never been precisely defined as its effects have happily remained mainly in the region of hypothetical cases. In the case of (8) Smith V. East Elloe Rural District Council (Supra) Lord Somervell of Harrow says (at page 770) : “Mala fides is a phrase often used in relation to the exercise of statutory power. It has never been precisely defined as its effects have happily remained mainly in the region of hypothetical cases. It covers fraud or corruption........” Again at page 771 after quoting the passage of Warrington L.J. in (10) Short V. Poole Corporation (supra) his Lordship says : “This way of describing the effect of bad faith should not be used to blur the distinction between an ultra vires act done bona fide and an act on the face of it regular but which will be held to be null and void if mala fides is discovered and brought before the court. The division in law is clear and deep........” I have already quoted the observations of Pollock M.R. in the case of (10) Shrot V. Poole Corporation (supra) which are relevant also to the question of mala fides. In the case of (5) S. Partap Singh V. State of Punjab (supra) Ayyangar, J. speaking for the majority, says at pages 82-83: “As we said earlier, the two grounds of ultra vires and mala fide are thus most often inextricably mixed....The nature of the power thus discloses its purpose. In that context the use of that power for achieving an alien purpose wreaking the ministers vengeance on the officer would be mala fide and a colourable exercise of that power, and would therefore be struck down by the Courts. In this connection we might cite a dictum of Lord Lindley in General Assembly of Free Church of Scotland V. Overtoun, 1904 AC 515, when the learned Lord said at p. 695: 'I take it to be clear that there is a condition implied in this as well as in other instruments which create powers namely, that the power shall be used bona fide for the purposes for which they are conferred. Doubtless, he who seeks to invalidate or nullify any act or ORDER :must establish the charge of bad faith, an abuse on a misuse by Government of its powers. Doubtless, he who seeks to invalidate or nullify any act or ORDER :must establish the charge of bad faith, an abuse on a misuse by Government of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the appellant has to establish in this case, though this may sometimes be done [See Edington V. Fitzmaurice, (1884) 29 Ch. D. 459]. The difficulty is not lessened when one has to establish that a person in the position of a minister apparently acting in the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. We must, however, demur to the suggestion that, mala fide in the sense of improper motive should be established only by direct evidence that is that it must be discernible from the ORDER :impugned or must be shown from the notings in the file which preceded the ORDER :. If bad faith would vitiate the ORDER :, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. Perusing here, we might summarise the position by stating that the Court is not an appellate forum where the correctness of an ORDER :of Government could be canvassed and, indeed, it has no jurisdiction to substitute its own view as to, the necessity or desirability of initiating disciplinary proceedings, for the entirety of the power, jurisdiction and discretion in that regard is vested by law in the Government. The only question which could be considered by the Court is whether the authority vested with the power has paid attention to or taken into account circumstance, events or matters wholly Extraneous to the purpose for which the power was vested, or whether the proceedings have been initiated mala fide for satisfying a private or personal grudge of the authority against the officer. If the act is in excess of the power granted or is an abuse or misuse of power, the matter is capable of interference and rectification by the Court. If the act is in excess of the power granted or is an abuse or misuse of power, the matter is capable of interference and rectification by the Court. In such an event the fact that authority concerned denies the charge of mala fides, or asserts the absence of oblique motives or of its having taken into consideration improper or irrelevant matter does not preclude the Court from enquiring into the truth of the allegations made against the authority and affording appropriate reliefs to the party aggrieved by such illegality or abuse of power in the event of the allegation being made out.” In the case of (12) Barium Chemicals Ltd. and another V. Company Law Board and others (A.I.R. 1967 Supreme Court 295) Shelar, J. says at page 323 : “Though an ORDER :passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonest or corrupt purpose ......” At page 320, in paragraph 58, dealing with the question of mala fide his Lordship observed: It may be that certain circumstances such as the timing of the ORDER :, might create suspicion, perhaps a strong suspicion but it is trite to say that suspicion, however grave, cannot substitute evidence. It is true as observed in Pannalal Binjraj V. Union of India 1957 SCR 233 at p. 259: (A.I.R. 1957 SC 397 at p. 409” that in a case where want of bona fides in the authority passing the impugned ORDER :is alleged the burden of proof, though on the party alleging it, is to the extent of its being shown as reasonably probable. “The allegation of mala fides has, therefore, to be judged in the light of the principles stated above. 111. The question as to whether the fifth respondent was appointed without proper qualification namely, without two years' cadre service in the year 1964, has to be judged in the light of following circumstances. It appears that the State Government have accepted the minimum basic qualifications recommended by the Dental Council for appointment to different posts. 111. The question as to whether the fifth respondent was appointed without proper qualification namely, without two years' cadre service in the year 1964, has to be judged in the light of following circumstances. It appears that the State Government have accepted the minimum basic qualifications recommended by the Dental Council for appointment to different posts. Looking at the regulations referred to it appears that all is required by the Dental Council by way of qualification for appointment as junior Lecturers or Tutors or Demonstrators is that the candidate should possess a recognised dental qualification within the meaning of Section 2 (j) of the Dentists Act. In the aforesaid section of the Dentists Act “recognised dental qualification is said to mean any qualification for the time being included in the Schedule or recognised by the Council under Section 10”. I have had occasion to refer to the Schedule earlier and that merely lays down recognised dental qualifications. It does not purport to deal with any other kind of qualification, as for example, teaching experience or cadre service. There is thus nothing in the Rules to show that before a person is appointed as a Tutor, he must have been in the service of the State for two years. 112. This point was not raised by the petitioner in his original application for issue of writ or in the petition or amendment. It was at a much later stage, in paragraph 14 of his reply to the counter affidavit filed by the State of Bihar, that for the first time the petitioner alleged that opposite party no. 5 was illegally and mala fide appointed as a Tutor without having two years cadre service under State Health Service as required for the appointment of Tutor in Government Medical Colleges, only because he happens to be the son of Dr. D. Ram for whom it appears any rule could be violated. The answer of the State of Bihar to this allegation is that “the criteria which has been mentioned is for the medical college and same is not applicable to Dental College. Not only Dr. R.Ram had been posted as Teacher directly but like him Dr. N. Lal, Dr. A.P. Singh, Dr. Mrs. K.L. Sahay, Dr. R.N. Chaterji, Dr. P. Singh. Dr. S.D. Modi and Dr. Not only Dr. R.Ram had been posted as Teacher directly but like him Dr. N. Lal, Dr. A.P. Singh, Dr. Mrs. K.L. Sahay, Dr. R.N. Chaterji, Dr. P. Singh. Dr. S.D. Modi and Dr. R.K. Sinha have been posted direct as Junior Teachers in Dental College, Patna.” It is not inconceivable that the State Government may adopt different suitable criteria for appointments to posts in different colleges having different purpose or different nature. It may be mentioned here that the Dented College of Patna was a new institution established in the year 1960 and there was a dearth of suitably qualified persons to man it. In the absence of any rule that a person must have two year’s cadre service before he is appointed as a Tutor, it cannot be said that the Government have acted either in violation of or in disregard of any mandatory or directory provision of law. It also cannot be said that for the purpose of appointment to posts in the Dental College the State Government had adopted this rule in any other Case. It is difficult, therefore, to see how the respondent's appointment as a Tutor in the absence of any previous service under the Government, can be said to be tainted with mala fides. It is also clear that it could not be the result of any malice against the petitioner, for, he was nowhere in the picture at the relevant time of respondent's appointment as a Tutor. The petitioner was for the first time appointed as a Tutor in the Dental College in the year 1966. This circumstance has, therefore, no relevance to the question of mala fides. 113. There is also no merit in the contention that the representations of the petitioner for considering his claim for promotion were purposely kept undisposed of and were rejected only on the 21st February, 1966 when the Government knew that Dr. Ram was likely to return soon after with a postgraduate qualification. This allegation is without any foundation. Nothing has been placed before us which would substantiate it. Dr. Ram did not obtain his degree of M.S. until April, 1967. If the representations had been deliberately kept pending mala fide, one would expect that they would be kept pending until the fact become certain that the respondent had obtained the degree of M.D.S. and was likely to return. Nothing has been placed before us which would substantiate it. Dr. Ram did not obtain his degree of M.S. until April, 1967. If the representations had been deliberately kept pending mala fide, one would expect that they would be kept pending until the fact become certain that the respondent had obtained the degree of M.D.S. and was likely to return. The fact that they were disposed of nearly three month before the return of the respondent belies the suggestion of the petitioner. 114. With regard to the allegation that although there were two vacancies available only one was filled up with a view to help the fifth respondent to gain an advantage over the petitioner, it has been said on behalf of the State Government that there was actually only one vacancy and the question of appointing the petitioner also did not arise. In fact there was a leave vacancy on account of Dr. Gupta going on leave with effect from the 3rd October, 1967 but it appears that Dr. R. P. Singh had also been promoted temporarily to the post of Professor with effect from the 4th August, 1967. It is true that he was appointed substantively to the aforesaid post in March, 1968 retrospectively with effect from the 4th of August, 1967. It thus appears that after the temporary promotion of Dr. P. Singh there must have been a consequent vacancy even though temporarily, so long as Dr. Singh acted as Professor. Circumstances do not indicate as to who was working, if any, in place of Dr. R. P. Singh or if the said temporary vacancy was not filled for some particular reason. The notification by which Dr. Singh was appointed temporarily as Professor has not been brought on record. One does not, therefore, know the reason for not appointing anybody or the petitioner to that vacancy but the mere fact that the petitioner was not appointed to either of the two vacancies does not point to mala fides on the part of the Government. If that were the case the fifth respondent himself would have been appointed on an earlier date, namely, the 4th of August, 1067. Neither the petitioner nor the aforesaid respondent was appointed to that post and the respondent was appointed only when Dr. If that were the case the fifth respondent himself would have been appointed on an earlier date, namely, the 4th of August, 1067. Neither the petitioner nor the aforesaid respondent was appointed to that post and the respondent was appointed only when Dr. Gupta went on leave and that too in that vacancy but long after, namely, a lapse of period of nearly four months. This circumstance also, therefore, does not substantiate the allegation of mala fides. 115. Again mala fides is alleged in the matter of rejection of his representation regarding the counting of teaching experience at Lucknow and during the supernumerary period. I have already given reasons earlier for holding that the decisions of the Government in this behalf cannot be said to be a fraud on any statute or statutory rule or abuse or misuse of their powers or ones arrived at without an honest consideration of an matters which should be taken into consideration. In the absence of the decision itself being illegitimate it does not give rise to an inference of mala fides in the absence of any other proof of the intention of the authorities to show that they were acting in the manner alleged on account of some malice against the petitioner of prejudice in favour of the fifth respondent. This grievance also is, therefore, not tenable for the purpose of proving mala fides. 116. The most important circumstance pleaded by the petitioner in this respect is that the ORDER :of appointment dated the 25th of January, 1968 was passed either on the fall of the ministry of Shri Mahamaya Prasad Sinha or when it was likely to fall, because the fifth respondent happens to be a son of Dr. Dukhan Ram, a close friend of Shri Mahamaya Prasad Sinha. It is true that it was difficult for the petitioner to know without looking into the relevant file as to what was the date on which the Chief Minister Shri Mahamaya Prasad Sinha, who was also the Health Minister at the relevant time, passed the aforesaid ORDER :. He alleged to be the 25th of January, 1968 whereas the State of Bihar has stated it to be the 24th of January, 1968. He alleged to be the 25th of January, 1968 whereas the State of Bihar has stated it to be the 24th of January, 1968. It has been urged that whether it be on one date or the other it is quite clear that there was an undue anxiety on the part of the Chief Minister to establish the fact of appointment of the fifth respondent before he parted with his office. It is also said that accepting the 24th of January, 1968 to be the date of the ORDER :, it is quite clear that the entire machinery of the Government was brought to the aid of the fifth respondent inasmuch as the notification was published the next day, its copy was sent to the Dental College the same day, and the very same day the fifth respondent joined the post of Lecturer. It is true that the circumstances create a lot of suspicion against the State Government. I am not prepared to say that it was a case merely of an expeditious disposal of matter which, though proper, may be uncommon in view of the machinery of the State moving slowly. When the State machinery ordinarily moves slowly a court of law will look with suspicion at a glaring departure in the case of any particular individual, in circumstances where mala fides is alleged against a Minister or an officer of Government. There can be no doubt that Shri Mahamaya Prasad Sinha must have been much too busy in making frantic Efforts for retaining the office of the Chief Minister and his Government in power to be able to find time on the eve of the fall of his ministry against which a vote of no confidence was going to be debated upon, to dispose of ordinary routine matters like appointments of Tutors in Dental College of Patna. It is difficult also to say that the Government machinery moved innocently and in due discharge of its duties resulting in the notification being signed, published, copies made out and sent to the college concerned resulting in the fact that the fifth respondent was able to join his post that very day. It is difficult to accept that it may have been the dealing assistant at the lower level who alone could have accomplished these facts. It is difficult to accept that it may have been the dealing assistant at the lower level who alone could have accomplished these facts. It is well known that according to the rules of the executive business of Government a matter is placed before the Minister only after passing through different levels in the hierarchy of the bureaucracy. It is equally well known that after an ORDER :is finally passed by the Minister concerned the file goes back in the descending ORDER :. after crossing all levels, ultimately to the dealing assistant. It is also well known that it is only then that notifications are published, copies made out and then sent to the department concerned. All this was done in the case of the fifth respondent within a day, on the 25th January, 1968 and thus he was able to join the post the same day. There is a very strong suspicion created on account of this “expedition” which has been termed by the petitioner as “hot haste” 117. The fact that the fifth respondent happens to be the son of Dr. Dukhan Ram has been admitted by him. The allegation that Dr. Dukhan Ram is a close friend of Shri Mahamaya Prasad Sinha has been denied by the fifth respondent in his counter-affidavit in the following words: “There is no friendship or close intimacy between this respondent’s father Dr. Dakhan Ram and Mr. Mahamaya Prasad Sinha.” It has, however, not been denied that Dr. Dukhan Ram is a very eminent person in the State of Bihar. It is, therefore, not unlikely that he may have an acquaintance or some sort of friendship with Shri Mahamaya Prasad Sinha. That might explain the expedition in the case of Dr. Ram. Even if, therefore, I were to accept that Dr. Dukhan Ram and Shri Mahamaya Prasad Sinha, were friends, the question still remains as to whether the appointment of the fifth respondent was motivated by this friendship. As I have pointed out in the words of the Supreme Court the timing of the ORDER :itself may create a strong suspicion but it cannot be a substitute for evidence. The fact that Shri Mahamaya Prasad Sinha passed the ORDER :on the eve of the fall of his ministry might arouse a suspicion but is no proof of the allegation of mala fides. The fact that Shri Mahamaya Prasad Sinha passed the ORDER :on the eve of the fall of his ministry might arouse a suspicion but is no proof of the allegation of mala fides. The most important consideration in judging mala fides must be whether the act itself is legitimate or illegitimate. A person cannot be said to be acting mala fide if he acts legitimately, for a legitimate end. If the decision itself docs not appear to be wrong no amount of allegation of mala fides would make it wrong. One does not have to act mala fide in ORDER :to achieve a purpose which is just and proper. Unless, therefore, it can be shown that the decision of the State Government in appointing Dr. Ram was wrong it is of no avail to the petitioner to say that Shri Mahamaya Prasad Sinha made the appointment as he was a close friend of Dr. Dukhan Ram. It is quite conceivable that the ORDER :of appointment having been passed by the Chief Minister, in view of the position which the fifth respondent occupies as the son of Dr. Dukhan Ram, the officers of the State Government helped him in getting through the notification the same day and thus enabling him to join the post the same day so that any subsequent ministry might not cancel or suspend the ORDER :of appointment. All this hot haste appears to me so likely so as to protect the interest of the fifth respondent. I am, however, not inclined to accept that the appointment itself was actuated or motivated by mala fide consideration on the part of the then Chief Minister. The petitioner has not been able to point out circumstances much less give clear proof of the act of the Chief Minister being mala fide. 118. Before I part with this topic I may state that the learned Advocate General took the objection that in the absence of Shri Mahamaya Prasad Sinha having been impleaded in this case the question of mala fides on his \part cannot be gone into. I regret that I am unable to accept this contention. If Shri Mahamaya Prasad Sinha had been impleaded as a party an that he could have done was to file affidavit denying the allegations against him which has been done by the State and the fifth respondent. I regret that I am unable to accept this contention. If Shri Mahamaya Prasad Sinha had been impleaded as a party an that he could have done was to file affidavit denying the allegations against him which has been done by the State and the fifth respondent. The petitioner could not and has not claimed any relief against him. The test for determining a proper party is whether a relief is claimed against him. A party is not a necessary party to be impleaded only to give him an opportunity to file an affidavit or so as to obtain an affidavit from him. In the case of (5) S. Partap Singh V. State of Punjab (Supra) the allegations were against the Chief Minister of Punjab Shri Kairon and his wife. They had not been impleaded. A petition had been filed at a later stage for making Shri Kairon a party so that he should have to file an affidavit. The application was rejected by the High Court. A grievance was made before the Supreme Court. Raghubar Dayal, J. held that the ORDER :Cannot be said to be wrong when the only ground mentioned for impleading the Chief Minister as a party was to nuke it incumbent on him to file an affidavit which he was not legally obliged to if he was not a party. In fact Ayyangar, J. in paragraph 14 at page 85 commented adversely on the fact that although there were several allegations against the Chief Minister there was no affidavit filed by him but what was placed before the Court in answer to the charges made against him was at affidavit of the Secretary to the Government in the Medical Department who could only speak from official records and obviously not from personal knowledge about the several matters which are alleged against the Chief Minister. In the circumstances aforesaid his Lordship did not consider it proper to brush aside the allegations made by the appellant. Thus even though Sri Kairon was not a party to the case, the learned Judges of the Supreme Court expected an affidavit from him since the allegations could have been properly answered by him and him alone. In the circumstances aforesaid his Lordship did not consider it proper to brush aside the allegations made by the appellant. Thus even though Sri Kairon was not a party to the case, the learned Judges of the Supreme Court expected an affidavit from him since the allegations could have been properly answered by him and him alone. In the present case it was open to the State of Bihar to inform the then Chief Minister of the allegations and request him to file an affidavit and answer the charges levelled against him even though he was not made a party. Shri Mahamaya Prasad Sinha was acting in his official capacity as the Chief Minister and the Health Minister in the matter of appointment. The State of Bihar have been impleaded because the relief is claimed against them. It was in the interest of the State of Bihar to support the ORDER :passed by the Chief Minister which they did. It cannot, therefore, be said that the person against whom allegation of mala fides is made in respect of his official acts, is a necessary party in the absence of whom the petition cannot be entertained. If that were so their Lordships of the Supreme Court would have rejected the application of S. Pratap Singh on this ground alone. I am, therefore, satisfied that the absence of Shri Mahamaya Prasad Sinha does not bar this Court from entering into the allegations of mala fides against him in his capacity as the Chief Minister of the State. On merits, however, I have found that the ground of mala fides has not been proved or shown to be provable. 119. The last point which remains to be considered is whether the ORDER :of appointment of Dr. Ram to the regular post of Lecturer dated the 25th of June, 1968 was passed mala fide. The petitioner's first grievance is that although a prayer for stay was undisposed of by this Court the Government made the substantive appointment. In this connection it is enough to point out that the petitioner did not press his application for stay and the Government were, therefore, free to act in a routine manner. The petitioner's first grievance is that although a prayer for stay was undisposed of by this Court the Government made the substantive appointment. In this connection it is enough to point out that the petitioner did not press his application for stay and the Government were, therefore, free to act in a routine manner. If this Court had chosen to interfere with the ORDER :dated the 25th of January, 1968, it would have also interfered with the ORDER :passed on the 25th of June, 1968, because the latter was based also on the ground that Dr. Ram had acquired experience in the post of Lecturer for five months. The mere fact that the Government did not sit idle in the matter would not point to mala fides on their part. 12. The second ground is this that even Dr. R.P. Singh had been appointed retrospectively with effect from the 4th' of August, 1967 so as to create a substantive vacancy for the sake of Dr. Ram. This argument must be rejected on the simple ground that in March, 1968 the Government had decided to appoint Dr. R.P. Singh as the Professor and it was not improper to appoint him with effect from the date he was actually promoted temporarily to work as a Professor. It is too much to Say that the State Government went to the extent of showing undue favour to Dr. Singh for the sake of doing undue favour to Dr. Ram. In view of the fact that the allegations of mala fides have failed in respect of the initial appointment of Dr. Ram, it is difficult to hold that the Government acted mala fide in appointing him substantively with effect from the date on which he had been initially appointed to the post of Lecturer. In the case of initial appointment specific allegations had been made by the petitioner against Shri Mahamaya Prasad Sinha. His ministry having fallen he was replaced by another Chief Minister and the petitioner has not made any allegation against him or the Health Minister in his Government. The circumstances which had been pointed out by the petitioner as existing on the 25th January, 1968 in connection with the earlier appointment have not been shown to exist in respect of the substantive appointment from which any mala fides could be gathered. The circumstances which had been pointed out by the petitioner as existing on the 25th January, 1968 in connection with the earlier appointment have not been shown to exist in respect of the substantive appointment from which any mala fides could be gathered. There is thus no substance in the allegation of mala fides in respect of this substantive appointment. 121. Although the petition filed by the petitioner for amendment of the writ application contains the ground that the State Government had no authority to pass the ORDER :retrospectively the point was not canvassed at any length by Mr. K.D. Chatterji. It was merely pointed that the fact that the ORDER :has been made retrospectively points to the conclusion that the initial appointment was made with a view to give Dr. Ram somehow the substantive post of Lecturer at a later date. I, therefore, do not find it necessary to give a considered opinion on the question as to whether the State Government have the right to pass retrospective ORDER :s of any kind. I may only point out that it has been held in several cases that the Executive do not have an unbridled authority to pass retrospective ORDER :s [see (13) A.I.R. 1969 Punjab 257 at 267: Suresh Kumar V. Union of India and (14) A.I.R. 1970 Supreme Court 385: The Income Tax Officer V. M.C. Ponnooste. I am therefore, not prepared to say that it is entirely within the discretion of the Government to make appointments and promotions with retrospective effect. To cite an illustration, if before a retrospective appointment is made by the State Government some other officer of the State has acquired a right which would be jeopardised or materially affected prejudicially by the appointment with retrospective effect, it would be difficult to hold that by a retrospective appointment it is open to the State Government to take away or materially prejudice the rights already acquired by another officer. The question does not, however, arise in the present case for decision. In the present case the appointment was not really retrospective in character. An ORDER :is said to be retrospective in character when it creates a legal fiction by which a thing is deemed to exist at a prior date when in fact it did not exist. If Dr. The question does not, however, arise in the present case for decision. In the present case the appointment was not really retrospective in character. An ORDER :is said to be retrospective in character when it creates a legal fiction by which a thing is deemed to exist at a prior date when in fact it did not exist. If Dr. Ram had been merely a Tutor and had been promoted retrospectively it could be said to be a case of retrospectively inasmuch as he did not do the work of a Lecturer in fact with effect from the date on which he would be deemed to be acting as such on account of the retrospective ORDER :. In the present case Dr. Ram was actually working as a Lecturer. Therefore, no legal fiction has been created in this matter. The only effect of the retrospective ORDER :is assigning his appointment to a vacancy different from the one to which he had been appointed. In the initial appointment he had been appointed in a leave vacancy. By the subsequent appointment he was appointed to a regular vacancy. The petitioner's grievance is really against his appointment and not against his appointment to a particular vacancy. It is difficult to say that the State Government not have the right to decide at a later point of time that the appointment of a particular Government servant should be assigned to a particular vacancy with effect from an earlier date when it does not prejudicially affect anyone else. Moreover, the petitioner cannot be said to have been materially prejudiced by the substantive appointment because as I have said above it took in to consideration the factum of the initial appointment of Dr. Ram and his experience gained thereby and the petitioner has failed to prove that on account of the various reasons given by him, he was entitled to be appointed to the post with effect from the 25th of January, 1958. During these five months the petitioner had not gamed any further qualification but it was the fifth respondent who had gained so and, therefore, his teaching experience had become much longer than the petitioners and he had acquired an additional claim of having worked in the post of Lecturer. The ground taken by the petitioner is, therefore, untenable. 122. During these five months the petitioner had not gamed any further qualification but it was the fifth respondent who had gained so and, therefore, his teaching experience had become much longer than the petitioners and he had acquired an additional claim of having worked in the post of Lecturer. The ground taken by the petitioner is, therefore, untenable. 122. Having considered the case of the petitioner from all aspects I have come to the conclusions that he cannot succeed and the application must therefore, be dismissed, but in the circumstances of this case there should be no ORDER :for cost. Application dismissed.