JUDGMENT B. D. Singh, J. This application by Dr. Phani Bhushan Prasad, under Article 226 of the Constitution of India is directed against the proposal contained in the memorandum submitted to the Government dated 27. 12. 1975 (Annexure 4) for appointment of Dr. H. N. Verma (respondent no. 2) as a professor in the Department of Surgery, Rajendra Medical College, Ranchi, on the basis of combined gradation list showing him as senior most lecturer in surgery as also against the promotion of respondent no. 2. as Professor of Surgery in the P. W. Medical College, Patna, (herein after referred to as the Patna Medical College), as per order dated 22.3.76 (Annexure 5 to the Supplementary affidavit dated 29/3/76) in the vacancy caused by the retirement of Dr. R. V. P. Sinha and also against the promotion of Dr. S. K. Sarkar (respondent no. 3) as Professor of Surgery in the Rajendra Medical College, Ranchi, (herein after referred to as 'the Ranchi Medical College'), as per order dated 22.3.76 (Annexure 6, to the petition for amendment filed on behalf of the petitioner. on 15/4/76). Prayer has further been made for quashing the gradation list of lecturers in surgery employed in the medical colleges of the State of Bihar, as contained in Annexure 4', and for determination of the seniority of the petitioner vis-a-vis respondents 2 to 5 for the purpose of appointment to the post of Professor in Surgery in the Patna Medical College, since according to the petitioner, he ought to have been considered for such promotion instead of respondent nos 2 and 3. 2. In order to appreciate the points involved in this petition, it will be necessary to state briefly the facts, as stated in the main application, supplementary affidavits and the counter affidavits filed on behalf of the respondents. 3. The petitioner passed matriculation Examination in first Division in 1943, and I. Sc' examination in first Division in 1945 from Patna University. In 1950 he passed M. B. B. S. Examination securing three Gold Medals. He has to his credit five honours merit scholarship from 1st. to 5th. 3. The petitioner passed matriculation Examination in first Division in 1943, and I. Sc' examination in first Division in 1945 from Patna University. In 1950 he passed M. B. B. S. Examination securing three Gold Medals. He has to his credit five honours merit scholarship from 1st. to 5th. year of the M. B. B. S. He also obtained Sifton Gold Medal for securing highest marks in medicine, besides P. C. Talent's prize medal for highest mark in aggregate at final M.B.B.S. (Pat 1 & II) Examination and Wheeler Gold Medal for securing highest marks in aggregate at the M.B.B.S. final examination. Thereafter the petitioner was recruited to the Bihar State Medical Service on 3.7.1951 and he joined as Civil Assistant Surgeon. He was casualty Registrar from 6.11.52 to 17.8.53 and Surgical Registrar from 18.8.53 to 27.9.1955, in Patna Medical, College (vide Annexure 1/1). In the meantime the petitioner passed Primary F.R.C.S. (London) from Colombo in 1952, only six months after finishing his housemanship. He passed Master of Surgery in 1954 from Patna University and final F.R.C.S. (London) in 1956 only in about six months after reaching London, after having gone on Ex-India study leave from 28. 9. 1955 and remained abroad up to 9. 8. 1958. He has to his credit several scientific papers published in Scientific Journals and he presented many papers in National and international Surgical Conferences. The petitioner remained on supernumerary duty (in short 'supy duty)' from 10.6. 58 to 2. 9. 58, thereafter as Junior Surgeon from 3. 9. 1958 to 9. 11. 62; tutor from 10. 11. 62 to 13. 9. 68 and lecturer in surgery from 14. 9.68 on which post he is still continuing. 4. That when the petitioner joined as Civil Assistant Surgeon on 3.7. 1951, Dr. H.N. Verma (respondent no. 2) was then not even qualified for the post, since he was simple graduate in medicine, and was never selected by the Bihar Public Service Commission for the post of Civil Assistant Surgeon as a direct recruit. In 1954 respondent no. 2 became a Malaria Officer. 1951, Dr. H.N. Verma (respondent no. 2) was then not even qualified for the post, since he was simple graduate in medicine, and was never selected by the Bihar Public Service Commission for the post of Civil Assistant Surgeon as a direct recruit. In 1954 respondent no. 2 became a Malaria Officer. In 1959 respondent no.2 passed F. R. C. S. from Edinburgh and on return to India, he was posted in Surgical Department of the Patna Medical College on supy duty from December 59 to August 1965, and while so posted, he tried to compete for every regular post like Resident Surgical Officer, Registrar, Tutor but due to his poor academic record could not succeed. In 1965 respondent no. 2 was somehow designated as Junior Surgeon retrospectively from 1959 to 1964, to enable him to gain teaching experience for the period while he was on supy duty. Thereafter for certain period from 1964 to August 1965, he worked as Surgical Registrar when he was posted in Ranchi Medical College as a lecturer but the concurrence of the Bihar State Public Service Commission (herinafter referred to as 'the Commission)' had never been obtained in his case. It may be stated here that in 1962 respondent no. 2 obtained Master of Surgery degree from the Bihar University. Except the thesis for his M. S. Examination, he has no scientific work or paper to his credit and his professional records as a clinician and teacher are very much inferior to those of the petitioner. Over and above the State Government never gave him the status of a senior surgeon. 5. The petitioner further states that the Govt, in the year 1962 included the name of the petitioner in the panel for appointment of lecturers in the medical colleges, requiring three years of teaching experience, and the Patna University too, which recognised the teaching experience only on regular post, that is, tutor, Registrar, Junior Surgeon, etc. for appointment as lecturers, did the same thing in 1963. At that time Dr. H. N. Verma, respondent no. 2, was no where as a teacher, what to speak of being considered for appointment as a senior teacher, like lecturer. It was only on the basis of posting of respondent no. for appointment as lecturers, did the same thing in 1963. At that time Dr. H. N. Verma, respondent no. 2, was no where as a teacher, what to speak of being considered for appointment as a senior teacher, like lecturer. It was only on the basis of posting of respondent no. 2 as a lecturer in Ranchi Medical College on 20/ 8 /1965, by which he was designated as a junior surgeon on supy duty and certain other posts thereof in the officiating capacity on supy duty as Registrar, that he was not posted for performance of such duty only on the basis of such designated teaching experience. The process of filling up of posts in the Patna Medical College, while under the Patna University and the State Govt., had been by appointment on fixed criteria, either made or confirmed by the Commission, for which respondent no. 2 was unable to compete due to his ordinary merit. Many persons like respondent no. 2 could not compete for any regular post like tutor in the Patna Medical College, but shortly afterwards they were given higher posts of lecturer in Ranchi and Darbhanga Medical College, by respondent no. 1. On 9.11.68 respondent no.I by letter no. 6472 (2) addressed to the Patna University, sent a panel of names for the appointment of lecturers of surgery in Patna Medical College, which included the name of the petitioner at serial no. 7, that of respondent no. 2 at serial no. 9 and those of respondent nos. 3, 4 and 5 at serial nos. 16, 18 and 27, respectively, as would be apparent from Annexures I and 1/1. Patna University referred the names of the petitioner, respondent no. 2 and others, to the Commission for recommendation for appointment as lecturer in Surgery at Patna Medical College, and the Commission, after interview, selected and recommended the petitioner as the first nominee for the post of lecturer in surgery, in preference to respondent no 2. None of the respondents was found suitable for the said post of lecturer in surgery at Patna Medical College, as would be apparent from the letter dated 25. 9. 69 Annexure 2', Respondent no. 2. None of the respondents was found suitable for the said post of lecturer in surgery at Patna Medical College, as would be apparent from the letter dated 25. 9. 69 Annexure 2', Respondent no. 2. having not been recommended by the Commission for being appointed as a lecturer in surgery at Patna Medical College, managed to continue as a lecturer in Ranchi Medical College, even beyond six months, without the concurrence of the Commission, on an illegal order of the Govt. 6. The petitioner further submitted in paragraph 15 of the main application that although there are two separate cadres of teachers for Patna Medical College and Ranchi Medical College, the State Govt. by order dated 15. 12. 1972 (Annexure 3) transferred respondent no. 2 as lecturer from Ram'hi Medical College to Patna Medical College in its surgery Department, where the petitioner had been working on a permanent basis, as a lecturer from before. The said transfer order (Annexure 3) has been challenged in C.W.J.C. 150 of 1973 by Dr. K. K. Sinha, which is pending consideration, on the ground that the transfer of respondent no. 2 was malafide and in circumvention of law relating to appointment of lecturers in Patna Medical College. During the pendency of that writ petition (CWJC-150/73) respondent no. 1 initiated an illegal propo3al for appointment of respondent no. 2 as professor of surgery in Ranchi Medical College on 27/12/75 on the basis of an illegal combined gradation list showing him as senior most lecturer in surgery vide Annexure 4'. Before, however, the said proposal was finally disposed of, a vacancy in the post of professor of surgery occurred in Patna Medical College consequent upon the retirement of Dr. R. V. P. Sinha. Before the petitioner had filed present writ application, the proposal as contained in Annexure 4' for appointment to the post of professor of surgery in Ranchi Medical College was placed before the Cabinet in its meeting dated 17/12/76 to take its decision but no decision, was however, taken on that date. According to the petitioner, respondent no. 2 was trying to get himself appointed in Patna Medical College in place of Dr. R. V. P. Sinha. After the petitioner had filed the present writ petition On 5.3.76, respondent no. 1 on 22.3.76 appointed respondent no. 2 in the vacancy caused by retirement of Dr. R. V. P. Sinha. According to the petitioner, respondent no. 2 was trying to get himself appointed in Patna Medical College in place of Dr. R. V. P. Sinha. After the petitioner had filed the present writ petition On 5.3.76, respondent no. 1 on 22.3.76 appointed respondent no. 2 in the vacancy caused by retirement of Dr. R. V. P. Sinha. Therefore the petitioner filed a supplementary affidavit on 29. 3. 76 wherein a copy of the said order of appointment of respondent no, 2 has been made as Annexure 5' and he has also ch1lienged that order. The petitioner has also filed a petition on 15/4/76, enclosing therewith a copy of the order of appointment of respondent no. 3 as professor of surgery in Ranchi Medical College (Annexure 6) with a prayer to amend the main petition. In that application the petitioner has reiterated that he had prayed for quashing of Annexure 4' and for determination of the seniority of the petitioner vis-a-vis respondent no. 2 to 5 for the purpose of appointment to the post of professor in surgery in the Patna Medical College, and to rectify the said gradation list by declaring the petitioner senior as a lecturer of surgery to respondent no. 2 to 5. As stated earlier, the petitioner has also challenged the two orders of appointment, one relating to respondent no. 2 as professor In surgery in place of Dr. R. V. P. Sinha (Annexure 5) and the other relating to respondent no. 3, as professor in surgery in Ranchi Medical College (Annexure 6) as having been passed arbitrarily and illegally, ignoring the claim of the petitioner and without giving any consideration to his case. The amendment prayed for, was allowed by this court by order dated 16. 4. 76. 7. A counter affidavit was filed on behalf of respondent no. 1 on 4. 5. 1976, inter alia, justifying the appointment of respondent no.2 and 3. It was further denied that the said appointment was made arbitrarily and without any principle. It also stated that the name of respondent no. 2 was published as indicated in the cadre of State Health Service at serial no. 315 (permanent) vide notification dated 17.2.68 and the same was never objected by the petitioner. It was further denied that the said appointment was made arbitrarily and without any principle. It also stated that the name of respondent no. 2 was published as indicated in the cadre of State Health Service at serial no. 315 (permanent) vide notification dated 17.2.68 and the same was never objected by the petitioner. It was further stated that the appointment to the posts of lecturer and professor are guided by the recommendation of the Medical Council of India according to which 5 years of minimum teaching experience as lecturer in surgery is taken into account for the post of professor in surgery, and that only the length of teaching experience as a lecturer is the main point of consideration for the appointment to the post of professor. In paragraph 18 thereof it was stated that respondent no. 2 was continuing to hold the post of lecturer (surgery) with effect from 20.8.65, whereas the petitioner was appointed as lecturer (surgery) with effect from 14.9.68 and also temporarily in anticipation of the concurrence of the Commission, which has now been received and the proposal to regularise his aforesaid appointment is under consideration of the Government. Therefore, it is asserted that the contention of the petitioner that he had long teaching experience as a lecturer than respondent no. 2 was not correct and so there was no question of the petitioner being threatened with illegal super-session by respondent no. 2 having been appointed as a professor in surgery in the vacancy caused by the retirement of Dr. R. V. P. Sinha, By reference to Annexure 4 it is also to be found that respondent no. 3 was also appointed lecturer from the same date (20.8.65). In paragraph 13 of the counter affidavit of the State, it was stated that the contention of the petitioner in paragraph 15 of his application were not tenable in law. There was nothing like separate cadre of teachers posted in the State Medical Colleges. According to respondent no. 1, there is only one cadre, that is, the Bihar State Health Service which includes the aforesaid teachers. They are treated on deputation to the teaching side, while posted as such. 8. Another counter affidavit has been filed on 21.4.1976 on behalf of respondent no. 2, among others, justifying his appointment and the order passed by the State Govt. 1, there is only one cadre, that is, the Bihar State Health Service which includes the aforesaid teachers. They are treated on deputation to the teaching side, while posted as such. 8. Another counter affidavit has been filed on 21.4.1976 on behalf of respondent no. 2, among others, justifying his appointment and the order passed by the State Govt. and also his transfer from Ranchi Medical College to Patna Medical College. In his counter affidavit he has annexed varieus papers supporting his contentions, which shall be referred as and when required. In paragraph 3 of the counter affidavit, inter alia, he stated that the memorandum contained in Annexure 4 included only senior most lecturers eligible for promotion to the post of professor in surgery in Medical Colleges under the State Govt. It is clearly indicated in that memorandum that for appointment to the post of professor only such lecturers are considered, who possess certain minimum academic qualification, and who hold minimum five years teaching experience as a lecturer. It was submitted by respondent no. 2 that the length of teaching experience as a lecturer had always been most important determining criteria for selection for the post of professor, therefore, in accordance with the guidelines prescribed by the Indian Medical Council, as explained in. Annexure 4 names of five senior most lecturers, including respondent no. 2 were placed before the Cabinet for selection for the post of professor. In view of his academic qualification, longest tenure of experience as a lecturer and his satisfactory record of service, he (respondent no. 2) was selected for the post of professor. 9. A separate counter affidavit has been filed by respondent no. 3 on 26.4.76. He has also, inter alia, justified his appointment as a professor under Annexure 6. In paragraph 4 of the counter affidavit he has stated that he became tutor in surgery on 29.7. 57 and remained as such till 20.8. 65 and, therefore, from 21.8.65 he became a lecturer in surgery and is continuing as such till the date of filing of the counter affidavit. In paragraph 5 thereof he has stated that the petitioner became tutor from 10.11.62 and remained as such till 13.9.68 and only thereafter he became a lecturer in surgery and hence in no case the petitioner can claim seniority over respondent no, 3. In paragraph 6 he stated that he (respondent no. In paragraph 5 thereof he has stated that the petitioner became tutor from 10.11.62 and remained as such till 13.9.68 and only thereafter he became a lecturer in surgery and hence in no case the petitioner can claim seniority over respondent no, 3. In paragraph 6 he stated that he (respondent no. 3) had also a better academic career. As a matter of fact, he got innumerable medals and prizes during the course of his scholastic period at Darbhanga Medical College, and he secured F. R. C. S. Degree in 1955 in a record time, and passed both parts. I and II in first attempt, as a result of which he was appointed directly in teaching cadre from 1956 and onwards. In paragraph 8 respondent no. 3 submitted that in 1962 he being fully qualified and experienced his name was included by the State Government in the panel of names for appointment as a lecturer and he appeared before the Commission. He fulfilled all the criteria for the post of lecturer in surgery (tutor in surgery) and as such he was given option on the basis of his merit, whereas the petitioner had irregular teaching assignment by his being a casualty officer in the year 1952-53, which was never a teaching post. 10. Annexure 4, memorandum containing proposal for the appointment which the petitioner has prayed for quashing, also included the names of Dr. R• N. Thakur (respondent no. 4) and Dr. Mahendra Pratap Sinha (respondent no.5). Therefore, counter affidavits have also been filed by them. Respondent no. 4 filed his counter affidavit on 19/4/76 and respondent no. 5 1iled his counter affidavit on 24.4.76. I will refer those affidavits if and when required. Thereafter, the petitioner has filed replies to the counter affidavits of the respondents on various dates. 11. Mr. Basudev Prasad, learned counsel appearing on behalf of the petitioner has raised the following points for consideration by us:(i) The impugned order contained in Annexure 5' under which respondent no. 2 has been promoted as professor in surgery in the vacancy caused on the retirement of Dr. R. V. P. Sinha and also the order under Annexure 6' whereby respondent no. 2 has been promoted as professor in surgery in the vacancy caused on the retirement of Dr. R. V. P. Sinha and also the order under Annexure 6' whereby respondent no. 3 has been promoted as professor of surgery in Ranchi Medical College on the proposal contained in the memo under Annexure 4' are ultra vires of Article 16 (1) of the Constitution of India, being in violation of law as it was arbitrary exercise of powers and also it was a malafide Act, of respondent no. I. (ii) The order of transfer of respondent no. 2 dated 15. 2. 1972, as contained in Annexure 3' is ultra vires rule 56 of the Bihar Service Code and mala fide, as the Patna Medical College teachers formed a separate cadre within the meaning of rule 12 of the said Code. (iii) The petitioner has been wrongly shown as junior to respondent no. 2 to 5 on the basis of length of teaching experience alone, which is contrary to the decision of the State Government, as also 1944 Sergeant• Major Rules, which got statutory force on 15th. April. 1950, by Notification no. 3555 3L-27/50A. 12. It will be convenient to deal with the submission of learned counsel for the petitioner under point no. (ii) first. According to him, there are two separate cadres of teachers in the Patna Medical College and Ranchi Medical College. In order to appreciate his submission learned counsel referred to the past history as to how the Patna Medical College came into existence. In this connection he referred to the affidavit in reply filed by the petitioner on 11. 5. 1976, to the counter affidavit filed on behalf of respondent no. land 2 In paragraph 3 thereof it was stated that the Govt. of Bihar and Orissa in their letter dated 25. 2. 1918 sanctioned the provincialization of the Bankipore General Hospital with effect from 1.4.1918 under the nomenclature of Patna General Hospital. The Civil Surgeon of Patna took entire charge of the Hospital as the Superintendent from the Committee of Management. The Prince of Wales Medical College, Patna has evolved out of the old Temple Medical School established in 1874 and named after Sir Richard Temple who formerly opened the same. For over 30 years that institution continued in a dormant condition, when Sir Andrew Fraser, the Lt. The Prince of Wales Medical College, Patna has evolved out of the old Temple Medical School established in 1874 and named after Sir Richard Temple who formerly opened the same. For over 30 years that institution continued in a dormant condition, when Sir Andrew Fraser, the Lt. Governor of Bengal, recognised its claim and made liberal grants for its improvement. The Prince of Wales Medical College, Patna, was created as the first medical college in Bihar, by the British Government of India by converting and upgrading the Temple Medical School on 25.21925. On the basis of the statement made by the petitioner in paragraph 18 of the reply filed by him on 27/4/76 to the counter affidavit of respondent no. 2, it was urged that the Govt. had sanctioned the Prince of Wales Medical College, Patna, as a Unit of the then Medical Service with a separate heirarchy of teaching posts. Subsequently, other medical colleges were created by the State Govt. after independence. The Patna Medical College was transferred to Patna University. According to the petitioner, Patna Medical College in the Patna University continued to be a separate cadre and appointment to that cadre was made in accordance with the relevent provisions of the Patna University Act, and the Statute of the Patna University. When different medical colleges were created by the State Govt. each was sanctioned as a separate part of the Medical Service or the State Health Service as a separate Unit. Each College had a separate Cadre within the meaning of that expression under the Bihar Service Code. The Governor's Ordinance dated 29/5/1971, which returned the ownership and management of the Patna Medical College to the Govt., also in terms, maintained it as a separate part of Service by continuing and protecting all the rights of the existing teachers of the college. He emphasised that its existence as a separate unit was never obliterated. He contended that there was no Government decision merging it either with the Govt. Health Service or with any other part of the Service existing as a separate Unit. In that view of the matter he contended that the State Govt. had illegally and arbitrarily transferred respondent no. 2 as lecturer from the Ranchi Medical College to Patna Medical College in its surgery department under Annexure 3. The petitioner had been working on a permanent post of lecturer in that Department from before. In that view of the matter he contended that the State Govt. had illegally and arbitrarily transferred respondent no. 2 as lecturer from the Ranchi Medical College to Patna Medical College in its surgery department under Annexure 3. The petitioner had been working on a permanent post of lecturer in that Department from before. The said transfer adversely affected the prospect of promotion of more suitable tutors of the Medical College. According to him, it was done malafide. 13. On the other hand, the Advocate General appearing for respondent no. 1 submitted that there is nothing like separate cadre of teachers posted in the State Medical Colleges. There is only one cadre, that is, the State Health Services, which includes teachers of various Colleges for example, teachers of Ranchi and Darbhanga Medical Colleges are all treated as in deputation to the teaching side while posted as such. He referred to Dr. Umakant Saran Vrs. State of Bihar AIR 1973 SC. 964 In paragraph 6 of the judgment their Lordships observed that 'there had been a reorganisation of the Medical Health Service. The State Govt. had two separate cadres known as the Medical cadre and the Public Health cadres in Bihar. Both these cadres were merged into one cadre known as the Health Service by Government Resolution dated July 17, 1965, published in the Bihar Gazette Extraordinary on July 22, 1965. This amalgamated cadre consist of (I) Duty posts on the Administrative side and (ii) teaching posts. All posts in the new Health Service were borne on the administrative side and the teaching posts were filled on an officiating basis from amongst those who were borne on the administrative side after having due regard to their teaching experience. As the teachers are always regarded as on deputation, they could be with drawn to the administrative side. He pointed out that the Medical Colleges at Darbhanga, Ranchi and Bhagalpur, which were established subsequently, were maintained and run by the Govt. under its direct supervision. The Patna Medical College, which was originally maintained and run by the govt. under direct supervision, was transferred to the Control of the Patna University; but later the State Govt. resumed control under Ordinance no. 62/7l. On the basis of the above observations he emphasised that all the teachers were treated as on deputation. under its direct supervision. The Patna Medical College, which was originally maintained and run by the govt. under direct supervision, was transferred to the Control of the Patna University; but later the State Govt. resumed control under Ordinance no. 62/7l. On the basis of the above observations he emphasised that all the teachers were treated as on deputation. There was, therefore, no bar for a lecturer working in Ranchi Medical College to be transferred to the Patna Medical College having the same qualification. In other words, they were inter changeable. Learned counsel for the other respondents have adopted the arguments advanced by learned Advocate General and in this connection they have drawn our attention to the statements made in the various counter affidavits. 14. In my opinion, on the materials on the record it will be difficult to accept the contention of learned counsel for the petitioner that the Patna Medical College has its separate existence and has a separate cadre and, therefore, respondent no. 2 could not have been transferred from Ranchi to Patna Medical College. Rule 12 (If the Bihar Service Code defines 'cadre' means' the strength of the service of a post of a service sanctioned as a separate unit. In the counter affidavit, which respondent no.2 has filed, he has enclosed a copy of the gazette notification dated 6. 3. 1968 containing Govt. resolution dated 17.2. 68 (Annexure 1' thereto), the relevant portion of which reads thus: "the State Medical and the State Public Health Cadres are hereby combined into a single cadre known as 'State Health Service' with effect from the 1st. April 1964 as in the Statement appended hereto." Paragraph 8 of the finance Department resolution dated 17/7/65 (Annexure 'J' thereto) also goes to show that the teachers of the Medical Colleges are officers of the Bihar Medical Service Cadre and they are deputed to the Medical Colleges on teaching assignment, the relevant portion of which reads thus; "The Medical and Public Health Cadre will be combined and will be called the 'Health Service'. The Cadre will consist of duty posts on the administrative side and teaching posts calculated on the basis of the actual requirements of deputation on the teaching side. The Cadre will consist of duty posts on the administrative side and teaching posts calculated on the basis of the actual requirements of deputation on the teaching side. The holders of teaching posts be treated to be on deputation to the teaching branch for the time during which they are employed as teachers and will be in the teaching posts on officiating basis", If we accept this contention of learned counsel for the petitioner that the Patna Medical College should be treated as a separate Unit having separate cadre and other medical colleges should be considered as having separate cadre for the purpose of appointment, transfer and promotion, it could not also serve public interest. Reference may be made to the State of Bihar V. Asis Kumar Mukherjee AIR 1975 SC. 192 where Krishna lyer. J. in paragraph 26 has observed 'Government's sole concern, we feel confident, will be to get the most capable, in the public interest......" If in the public interest it is necessary that a doctor should be transferred from Ranchi to Patna or from Patna to Ranchi and for the sake of administrative contingency also in my view the Govt. should have a free band, and it should not be easily interfered with. In the State of Jammu and Kashmir V. Triloki Nath Khosla AIR 1974 SC. 1 at page 13 in paragraph 42 Chandrachud, J. observed:- It is often impossible or at any rate inexpedient to reach and remedy all forms of evil whereever present. Reforms must begin somewhere if it has to begin at all and therefore, the administrator who has nice and complex problems to solve must be allowed the freedom to proceed tentatively, step by step. Justice Homes gave in a similar context a significant warning that; "we must remember that the machinery of Govt. would not work if it were not allowed a little play in its joints "Bai Poanltt Co. V. Pinson (1930) 75 Law Ed 482, 489." In the instant case, therefore, I do not find any material to hold that the transfer of respondent no. 2 from Ranchi Medical College to Patna Medical College was in any way motivated and according to me, it was not a malafide action of respondent no. 1. After careful consideration, therefore, I hold that there is no merit in the convention of learned counsel for the petitioner under point no. (ii). 15. 2 from Ranchi Medical College to Patna Medical College was in any way motivated and according to me, it was not a malafide action of respondent no. 1. After careful consideration, therefore, I hold that there is no merit in the convention of learned counsel for the petitioner under point no. (ii). 15. Now I proceed to consider the controversial point nos. (i) and (iii) together as they are allied. Mr. Basudev Prasad submitted that although the petitioner had requisite minimum qualification, he was not considered at all while making the order of promotion of respondents 2 and 3. In paragraph 5 of the counter affidavit, filed on behalf of respondent no. 1, the minimum qualification is given, the relevant portion of which is mentioned below. "Appointment to post of lecturer and professor are guided by the recommendations of the Medical Council of India (noted below) according to which 5 years minimum teaching experience as Lecturer in Surgery is taken into account for the post of Professor in Surgery. * CRITERIA OF MEDICAL COUNCIL OF INDIA Post Academic qualification Teaching/Research experience Professor. M. S., F. R. C. S. As Reader/Assistant Specialty Board of Professor in Surgery Surgery (U. S. A.) for 5 years in a Medical or an equivalent College after requisite qualification in post Graduate qualification.” the subject. Learned counsel for the petitioner referred to paragraph 18 of that counter affidavit in which it has been stated that the petitioner was appointed as lecturer (Surgery) with effect from 14. 9.68. temporarily in anticipation of the concurrence of the Commission, whereas respondent no. 2 was holding the post of lecturer (Surgery) from 20. 8. 65. So was the case of respondent no 3, that is, he was also holding the post of lecturer (surgery) from 20. 8. 65. Therefore, it was submitted by the learned counsel, that it is admitted by the respondent that the petitioner had minimum requisite length of teaching experience. In the concluding portion of paragraph 18 of the said counter affidavit it is stated that the aforesaid proposal to appoint respondent no. 2 as Professor of Surgery is in accordance with law, since he possessed more teaching experience as Lecturer whereas the petitioner was not even considered because his teaching experience as Lecturer being less than other". In the concluding portion of paragraph 18 of the said counter affidavit it is stated that the aforesaid proposal to appoint respondent no. 2 as Professor of Surgery is in accordance with law, since he possessed more teaching experience as Lecturer whereas the petitioner was not even considered because his teaching experience as Lecturer being less than other". The bone of contention is as to whether only length of teaching experience should be taken into account while making promotion. According to the case of respondent no. 1 to 5, only length of teaching experience is the main point for consideration in such cases. According to counsel for the respondents that has always been the basis in the• past and the same has been held in various cases decided by this court. 16. On the other hand, Mr. Basudeo Prasad contended that according to Sergeants Major's Rules and the latest decision of the Supreme Court, merit has also to be taken into account and not only length of teaching experience. In order to find support to his contention he relied on The State of Bihar V. Asis Kumar Mukherjee. That case arose out of the judgment of this court of which I was one of the members. The main issue, as framed by Krishna lyer J., who delivered judgment for the Court, is to be found in paragraphs 3 and 4 of the judgment which read thus:- "3 The main issue that arises and was argued before us by the State's counsel, supported by Shri Garg for the other candidates, is that the High Court, which allowed the writ petition, grievously erred in prohing improperly into the concerned cabinet papers and upsetting governments orders of appointment, upholding the petitioner's eligibility and directing a reconsideration of the claims of all the contenders on certain untenable finding of fact and indefensible interpretation of law. Did the petitioner possess the prescribed qualifications for the post. If he did, the High Court was right in directing the appointing authority to consider his claims; and if did not, government rightly ignored his credentials for the post as an unqualified hand, despite his impressive British testimonials and good showing otherwise. Such is the compass of the dispute which is basically a technical question but, under our system, has to be decided by courts unaided by expert advice. 4. Such is the compass of the dispute which is basically a technical question but, under our system, has to be decided by courts unaided by expert advice. 4. The case has taken three days of argument based on three heavy volumes of appeal records mercifully less than the eight days of hearing in the High Court. The colossal consumption of forensic time, investment of considerable litigation expense and the diversion of useful medical energy of three young specialists for three years in two rounds of writ contests are the heavy social price paid by the community for discovering through court-trained in law and not in medicine, and called upon to adventure into the nature of actual teaching experience and the names of approved teaching Institution beyond Indian frontiers. The question involved is as to whether the writ petitioner, a doctor who worked in hospitals in Britain under orthopaedic professors supposedly of great repute, had teaching experience in a teaching institution good enough under the Indian statute and for the Patna College. From olympic team selection to orthopaedic expertise the judicial robes are invited to exercise umpire's jurisdiction under our system. Even were judges angels, should they not fear to tread where perhaps others may rush in ?" Mr. Prasad drew our attention to paragraph 23 of the judgment in which it has been observed that while officious interference with every wrong government order was not right, the first respondent of that case had complained of violation of the regulations which bound State and citizen alike. Although the State need not always make a reasoned order of appointment, reasons relevant to the rules must animate the order. Moreover, an obligation to• consider every qualified candidate is implicit in the 'equal opportunity' right enshrined in Articles 14 and 16 of the Constitution. Screening a candidate out of consideration altogether is illegal if the applicant has eligibility under the regulations and for such a drastic step as refusal to evaluate comparatively, i. e. exclusion from the ring of a competitor manifest ground must appear on the record. Such being the legal perspective, their Lord- ships tested the order of the Government by those canons. Mr. Prasad laid emphasis on the observation made in paragraph 26 of the judgment at page 198 of the Report. Such being the legal perspective, their Lord- ships tested the order of the Government by those canons. Mr. Prasad laid emphasis on the observation made in paragraph 26 of the judgment at page 198 of the Report. It will be relevant to extract the said paragraph in extenso;-"We have already observed that at the first flush the 1st respondent looks like eligible and highly qualified but there may be more than meets the eye. Government may investigate and be satisfied about the real qualifications. In the interests of justice and in view of the ambiguous thinking on this question at administrative levels we regard it as necessary to give the candidates time till the end of January, 1975 to produce evidence of the 1st respondent's teaching experience in teaching institutions as interpreted by us. Government will give a fair consideration to the qualifications and relative worth of all the candidates. Length of teaching experience will certainly be a relevant not necessarily dominant factor. The quality of their experience, their academic attainments and the intellectual ability to stimulate students in the specialty and the investigative curiosity likely to be imparted to the alumni these weighty considerations wil1 promote public weal in a country hungering for talented doctors. Government's sole concern, we fee) confident, will be to get the most capable, III the public interest and in the hope that this happy wish will not fail we proceed to issue the substantive declaration and directions". On the basis of the above observations Mr. Prasad submitted that their Lordships have clearly held that the length of teaching experience v.il1 certainly be a relevant not necessarily dominant-factor. Therefore, the quality of experience, academic attainments and intellectual ability have also to be taken into account and their Lordships have held that those were weighty considerations which would promote public weal. 17. Mr. Prasad also drew our attention to an unreported judgment of this court dated 31.1.76 in Dr. Sharda Sahay Vs. State of Bihar and others C.W.J.C. no, 1820 of 1974 D. 31.1.1976. where in it was observed that generally for promotion seniority cum-merit is taken into consideration but it does not mean that the length of teaching experience should not be considered at all. He also submitted, by reference to sergeants Major's Rules of 1944 which is to be found in notification No. 2765/A dated 15. 7. where in it was observed that generally for promotion seniority cum-merit is taken into consideration but it does not mean that the length of teaching experience should not be considered at all. He also submitted, by reference to sergeants Major's Rules of 1944 which is to be found in notification No. 2765/A dated 15. 7. 1944, for promotion merit is to be treated as a weighty consideration and the quality of experience, academic attainments, etc. have to be taken into account. He also submitted that the said Rules have statutory force of law under Article 309 of the Constitution. Relevant portion of the said Rules reads thus :- “A definite decision regarding the fitness of officers for promotion to the higher service should be taken not when officers are promoted to officiating vacancies but when substantive vacancies occur. In making this decision the policy should be to reject rigorously all those who are unfit for promotion i. e., all those who are not definitely fit for the higher posts and subject to the conditions, to promote by seniority. Thus, if more than one officer has to be promoted to the post of Deputy Superintendent of police on the same day, their seniority interse should depend on their seniority as Inspectors or Sergeant Major, provided all of them satisfy the criterion of fitness...." Learned counsel also referred to an extract of Government orders communicated to the Darbhanga Medical College under Health Department's letter No. IIP 4-2-1-55-12319/H dated 2-5-1955, which is as follows :- That the Government has been pleased to decide that when two officers are more or less of equal merit then the length of experience as specialist should be the deciding factor in determining the seniority between one another to hold a specialist post, when, they are of equal merit and have also equal length of service as specialist then seniority in the cadre should be deciding factor." The submission of Mr. Prasad was that the above Government decision is also supplemental to the Sergeants Major's Rules and point to the same direction that merit should not be ignored while passing an order for promotion. He contended that length of teaching experience as specialist should be the deciding factor in determining seniority between one another, to hold a specialist post. Prasad was that the above Government decision is also supplemental to the Sergeants Major's Rules and point to the same direction that merit should not be ignored while passing an order for promotion. He contended that length of teaching experience as specialist should be the deciding factor in determining seniority between one another, to hold a specialist post. It is only when 2 or more persons of equal merit with equal length of service as specialist that seniority in the cadre should be the deciding factor. This decision of the Government, learned counsel submitted, fully supports the case of the petitioner. 18. Ho N merit has to be judged, learned counsel submitted, guideline has been provided by the Supreme Court in Gurnam Singh v. State of Rajasthan 1935-1973 (3) S.C.S.L.J. 371. In that case also their Lordships dealt with the case of promotion. It was observed there in that no doubt the terms merit was not capable of any easy definition, but it could be safely said that merit was sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the university, his character. integrity, devotion to duty and the manner in which he discharges his official duties. Allied to that might be various other matters Or factors such as his punctuality in work, the quality and out-turn of work done by him and the manner of his dealings with superior and subordinate officers and the general public and his rank in the service. Besides, various particulars in the annual confidential reports of an officer, if carefully and properly noted, would also give a very broad and general indication regarding the merit of an officer. 19. Mr. Prasad urged that in the instant case in the counter affidavit of respondent No.1, as already stated earlier, it is clearly admitted that the petitioner was not even considered. Learned counsel argued keeping in view merit of the petitioner as well as his length of service as specialist and his seniority in the State Health Service the petitioner was entitled to due consideration of his case, which was denied to him. In, order to find support to his submission he referred to Dr. Asis Mukherjee v. State of Bihar 1973 B.L.J.R. l87. In, order to find support to his submission he referred to Dr. Asis Mukherjee v. State of Bihar 1973 B.L.J.R. l87. and drew our attention to the observation made in paragraph 20 at page 203 where in passage has been extracted from the case of S. G. Jaisinghani v. Union of India A1R. 1997 SC 1427 the relevant portion of which is quoted below :- "In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which Our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principles or without any rule it is unpredictable and such a decision is the antithesis or a decision taken in accordance with the rule of law......." In the said paragraph 20 their Lordships also quoted with approval a passage from the Full Bench decision in the case of Dr. C .M. Srivastava v. The State of Bihar 1972 P.L.J.R. 182 (F.B.) as follows :-. "It is true that the petitioner could not ask for consideration 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 relevant factors in dealing with the non-consideration of appointing authority and so this was really a case of the relevant factors in dealing with the question of promotion." 20, Mr. Prasad, on the basis of the above observation contended that in the instant case the petitioner was entitled to due consideration of his case which was admittedly denied to him. 21. Learned Advocate General, on the other hand, contended that the length of teaching experience should be deciding factor for the appointment of professor. Prasad, on the basis of the above observation contended that in the instant case the petitioner was entitled to due consideration of his case which was admittedly denied to him. 21. Learned Advocate General, on the other hand, contended that the length of teaching experience should be deciding factor for the appointment of professor. He referred to the recommendation of the Mukhopadhyaya Committee dated 8. 9. 1973, a copy of which has been marked as Annexure 9' to the reply filed by the petitioner on 27.4.76 to the counter affidavit of respondent no. 2. He pointed that in paragraph 5 it is mentioned that for appointment to the post of professors length of teaching experience as a lecturer in the subject shall be the deciding factor. It is only when the teaching experience as a lecturer of two or more officers are of equal duration, their seniority in Health Services Cadre shall determine inter se position. The said report of the Mukhopadhyaya Committee was adopted by the Government under resolution dated 13 8. 1974. The Mukhopadhyaya Committee report has been fully considered in Dr. Chhedi Choudhary v. State of Bihar C.W.J.C. no. 1341 of 1974 decided on 9.5.1975. In paragraph 22 of the judgment their Lordships have held that the Council of Ministers had accepted the Mukhopadhyaya Committee report. Learned Advocate General also submitted that there is no statutory rules making selection for the appointment of professors and, therefore, the State Government has acted in the best of its judgment for making selection, as he has submitted that the Sergeant, Major's Rule is not applicable in the instant case, as in none of the judgments Sergeants-Major's Rules has ever been referred. He drew our attention to Dr. Umakant Saran V. State of Bihar1 which went to the Supreme Court from this court. The appellant was. Dr. Umakant, Saran, whereas Dr. Hari Narain Verma and Dr. Mahendra Pratap Sinba, who were impleaded as respondents 6 and 5 in that case, are respondents 2 and 5 in the instant case. In paragraph 7 of that judgment it is stated that the State Government relied upon the counter-affidavits filed on behalf of respondents 5 and 6 so far as the factual statements were concerned and averred as follows in para 6 : "The charges of arbitrariness and malafide made in the writ applications are erroneous and unjustified. In paragraph 7 of that judgment it is stated that the State Government relied upon the counter-affidavits filed on behalf of respondents 5 and 6 so far as the factual statements were concerned and averred as follows in para 6 : "The charges of arbitrariness and malafide made in the writ applications are erroneous and unjustified. There being no statutory rules directly governing the matters under considerations, the state government acted in the best of its judgment in selecting for appointing the persons most suited to the job by reason of their capability and experience." He also referred to paragraph 14 thereof where it was held that even so Dr. Saran complained that he was senior to respondents 5 and 6 and since they were all in the same class of teachers, his seniority could not be ignored. There could be no doubt that he was senior to respondent no. 5 but the same could not be said with regard to respondent no. 6. It was true that respondent no. 6 was absorbed in the Medical Service for the first time in 1957 and in that sense he was junior to Dr. Saran who joined in 1954. But as already pointed out, respondent No.6 had been working as Assistant Malaria Officer from 1953 in a grade equivalent to that of Civil Assistant Surgeon and that on his absorption in 1957 as a Civil Assistant Surgeon, his seniority was counted in the cadre as from the date he was appointed as the Malaria officer i. e. 1953. He could not, therefore, be regarded as junior to Dr. Saran. Therefore, the latter could not question the appointment of respondent No.6 either on the ground that he was junior to him or on the ground that respondent No. 6 did not have teaching experience for 3 years. Learned Advocate General submitted that in the instant case there is no question of violating Article 16 of the Constitution. It was incumbent upon the petitioner to disclose not only the rule said to have been infringed, but also how that opportunity was unjustifiably denied on each particular occasion. In order to find support to his submission learned Advocate General relied on Amrit Lal Berry V Collector of Central Excise & Central Revenue AIR 1975 SC. It was incumbent upon the petitioner to disclose not only the rule said to have been infringed, but also how that opportunity was unjustifiably denied on each particular occasion. In order to find support to his submission learned Advocate General relied on Amrit Lal Berry V Collector of Central Excise & Central Revenue AIR 1975 SC. 538 where it was observed in paragraph 12 at page 545 that fundamental rights alleged to be violated could only be the general one embraced by Article 16 which reads: "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the Stale". When a petitioner alleged that he had been denied equality of opportunity during the course of his employment as a Government servant, it was incumbent upon him to disclose not only the rule said to be infringed but also how this opportunity was unjustifiably denied on each particular occasion. The equality of opportunity in a matter relating to employment implied equal treatment to persons similarly situated or in the same category as the petitioner. It postulated equality of conditions under which a number of persons belonging to the same category competed for the same opportunities and a just and impartial application of uniform and legally valid standards in deciding upon competing claims. It did not exclude justifiable discrimination. In paragraph 15 also it was held that it was for the petitioner to satisfy the Court that he was not given the senior grade although he satisfied all the required conditions of it and that others, who were promoted into it, were given unjustifiable preference over him. Learned Advocate General submitted that similar view was taken in Joginder Nath V. Union of India AIR 1975 S.C. 611 wherein it was observed in paragraph 15 "Did it put unequals with equals and violated Article 14 of the Constitution?" In that very paragraph it was observed, ''It was not possible or practical to measure their respective merits for the purpose of seniority with mathematical precision by a barometer. Some formula doing largest good to the largest number had to be evolved. .... . . " 22. Mr. Karuna Nidhan Keshav appearing on behalf of the respondent no. 2 has adopted the arguments advanced by the learned Advocate-General and referred to the case of Dr. Some formula doing largest good to the largest number had to be evolved. .... . . " 22. Mr. Karuna Nidhan Keshav appearing on behalf of the respondent no. 2 has adopted the arguments advanced by the learned Advocate-General and referred to the case of Dr. Asis Mukherjee wherein this court had directed the consideration of the case of the petitioner only because of the teaching experience, which the petitioner had acquired in foreign country, were not taken into consideration, and if those could have been taken into account he had the length' of teaching experience equal to that of respondent nos. 5 and 6. Learned counsel referred to paragraph 9 of the judgment, where it was observed that it was admitted by the petitioner as well by the respondents that respondent no. I had adopted the recommendation of the Medical Council of India with regard to academic qualification and teaching research experience for appointment to the post of Professor, Associate Professor and Reader I Assistant Professor for the subject Orthopaedics. It was further held in that very paragraph that the recommendation of the Medical Council of India had also been approved by the Government of India as required under the Indian Medical Council Act, 1956. Reference was also made to an unreported judgment in the case of Dr. Asis Mukherjee Vs. The State of Bihar C.W.J.C. no. 430 of 1973 and others. In paragraph 11 of the said judgment Dr. Mukherjee, the petitioner had contended that after the order passed by this court in C.W.J.C. no. 754 of 1972 (1973 B.L.J.R. 187) the state had merely put up a show of examining the certificates filed by him in support of his claim of teaching experience in United Kingdom. According to learned counsel, there had been no honest consideration of his claim by the State and, therefore, its order appointing Dr. Ram and Dr. Jarnuar in pr eference to Dr. Mukherjee was liable to be set aside. It was contended that again the grounds taken by the state for rejecting the teaching experince in the United Kingdom of Dr. Mukherjee as irrelevant and extraneous. He bad relied on an observation in the case of Dr. Ram and Dr. Jarnuar in pr eference to Dr. Mukherjee was liable to be set aside. It was contended that again the grounds taken by the state for rejecting the teaching experince in the United Kingdom of Dr. Mukherjee as irrelevant and extraneous. He bad relied on an observation in the case of Dr. C.M. Srivastav v. The State of Bihar that the petitioner could show the court that his case did not receive consideration or an honest consideration of the appointing authority and so that was really a case of non-consideration of the relevant factors, in dealing with the question of promotion. On the other hand, learned counsel for the respondent of that case bad vehemently urged that there bad been an honest consideration by the state of the claim of Dr. Mukherjee regarding his teaching experience in the United Kingdom and the decision of the State un that question taken after due consideration of all the papers filed by Dr. Mukherjee could not be set aside by this court in exercise of writ jurisdiction. In that case the petitioner had referred to various certificates from Dr. Robert Raof and Dr. Geoffery observed which he had from the United Kingdom while he was working as Registrar in three hospitals and consultant in two hospital boards and in that capacity he had obtained teaching experience. In paragraph 26 Shambhu Prasad Singh, J, who delivered the judgment, observed that Dr. Mukherjee did possess requisite teaching experience and the State had refused to recognise it on irrelevant and extraneous considerations. Accordingly, in paragraph 29 of the judgment he held; “Let a writ issue quashing the order of the State dated 14tb of March, 1975, as contained in Annexure 14, appointing Dr. Ram and Dr. Jamuar to the posts of lecturers in orthopaedics and directing it not to keep Dr. Mukherjee, who admittedly possesses the requisite academic qualification and as found in Civil Writ Jurisdiction case no. 754 of 1972, is senior to Dr. Ram and Dr. Jamuar, out of consideration for appointment to the post of lecturer in orthopedics on the ground that he does not possess requisite teaching experience.". Accordingly the writ petition filed by Dr. Asis Mukherjee, (C.W.J.C. no. 430 of 1973) was allowed, while that of Dr. Surendra Dutta Misra (C.W.J.C. no. 754 of 1972, is senior to Dr. Ram and Dr. Jamuar, out of consideration for appointment to the post of lecturer in orthopedics on the ground that he does not possess requisite teaching experience.". Accordingly the writ petition filed by Dr. Asis Mukherjee, (C.W.J.C. no. 430 of 1973) was allowed, while that of Dr. Surendra Dutta Misra (C.W.J.C. no. 429 of 1972) was dismissed on the ground that he did not possess requisite teaching experience of three years on any date in the year 1971 or even on the 18th of May, 1972. 23. On the basis of the above observation it was contended on behalf of the respondents that it was apparent that this court has taken into account only the length of teaching experience. It was submitted on behalf of the respondents that aggrieved by the order of this court in C W. J. C. no. 430 of 1973, whereby the application of Dr. Asis Mukherjee was allowed, the State of Bihar and other respondents, namely, Dr. Ram and Dr. Jamuar, had preferred an appeal to the Supreme Court, which was dismissed, and the judgment of this court was affirmed as reported in A. 1. R. 1975 S. C. 192 (Supra.) 24. Learned Advocate General, in reply to the contention of learned counsel for the petitioner referred to the observation of Krishna Ayer, J. in paragraph 26 at page 198 and pointed out that his Lordship has merely expressed his desire that the quality of their experience, their academic attainments and the intellectual ability to stimulate students in the specialty and the investigative curiosity likely to be imparted to the alumni were weighty considerations. Obviously, it was his desire, he submitted, because he has used the expression in the hope that this happy wish will not fail . . . . " The learned Advocate General referred to parasraph 27 of the judgment where in it was directed that the first respondent's eligibility on the basis of the relevant regulation would be examined afresh. Therefore, he urged that his Lordship made it clear that the eligibility of the first respondent would be considered only on the basis of the relevant regulation and the relevant regulation is based on the Indian Medical Council Act, and the Mukhopadhyaya) a Committee report, which was adopted by the State Government referred to above. 25. Therefore, he urged that his Lordship made it clear that the eligibility of the first respondent would be considered only on the basis of the relevant regulation and the relevant regulation is based on the Indian Medical Council Act, and the Mukhopadhyaya) a Committee report, which was adopted by the State Government referred to above. 25. In my opinion, the submission of the Advocate General regarding the observation made by Krishna Iyer, J. in paragraph 26 is not acceptable. Simply because his Lordship used the expression "happy wish" it cannot be assumed that his Lordship meant only to express his desire and not to be followed. Reference may be made to the earlier portion of paragraph 27 where his Lordship has clearly mentioned "in so doing the State will Act, in conformity with the findings and observations made above." Therefore, in my opinion his Lordship has laid down that while making appointments not only length of teaching experience, but also merit should be taken into consideration; for example, academic attainments, intellectual ability in the specialty etc. This view is also supported from the further observation made by his Lordship in paragraph 27 where it was directed that the parties, particularly the 1st respondent, would have the "liberty to adduce materials to satisfy the State Government on his qualifications (or otherwise) on or before the last day of January, 1975...." 26. However, learned counsel for the respondents submitted as mentioned earlier, that this Court in various cases had considered the length of teaching experience as the only criteria for promotion. Reference was made to an unreported decision in the case of Dr. Onkar Nath Jayaswal vs. The State of Bihar and others C. W. J. C. no. 409 of 1972 decided on 6.10.72, wherein Shambhu Prasad Singh, J. who delivered the judgment for the Court, observed in paragraph 13 as follows:- "I now take up for consideration the main question arising for decision in the case, namely, whether on the materials placed before the Court, keeping out of consideration annexures 6 and 6- I, the petitioner is entitled to a writ for quashing that part of annexure 8 by which respondent no. 3 has been promoted to the pay scale of a professor. In view of the fact that respondent no. 3 has been promoted to the pay scale of a professor. In view of the fact that respondent no. 3 is much senior to the petitioner in the cadre of Health Service of the State and holds degree of M.R.C.P. in Paediatrics from Edinburgh and Diploma in Child Health from London, which the petitioner does not hold, strong reliance was placed by learned counsel for the petitioner on certain passages in a recent Full Bench decision of this Court in case of Dr. C. M. Srivastav v. State of Bihar and otherS8 showing as to what was the case of State of Bihar, respondent no. 1 (respondent no. 1 in that case as well) as to principles followed in the matter of promotion to teaching post. It was in the case of respondent "respondent no. 1" as it appears from the judgment of the said case, that Fellowship of Dental Surgery of the Royal College of Surgeons (which is equivalent to the degree of M. R. C. P. of respondent no. 3) was to be treated on the same level as the M.D.S. degree in Dentistry (equivalent to the M.D. degree of the petitioner) for the purposes of promotion to the post of lecturer and that cadre seniority in the Health Service was not taken as the basis for appointment to a teaching post: what was relevant was the seniority determined on the basis of length of recognised teaching experience and cadre seniority would prevail only as between officers having equal teaching experience. It further appears from that judgment that according to respondent no. 1, decision to Act, on the lines as stated in the preceding sentence was taken as far back as in 1954. A portion of the counter affidavit filed in that case by respondent no. 1 has also been made annexure 9 to the petition. The decision in the aforesaid Full Bench case was also given on that basis. Strictly speaking much reliance cannot be placed on what was the counter affidavit of respondent no 1 in another writ case. Writ cases are decided on affidavits of the parties. Unless the two cases are between the same parties, one of the parties to the former case cannot be pinned down for the purpose of a subsequent case to its affidavit in the former. Writ cases are decided on affidavits of the parties. Unless the two cases are between the same parties, one of the parties to the former case cannot be pinned down for the purpose of a subsequent case to its affidavit in the former. It may be that affidavit in the former case was not factually correct and it is always open in such a case to that party to say that and explain the matter in a subsequent case. But, neither respondent no, I, nor other respondents, were able to convince us that what was stated in the counter affidavit of respondent no. 1 in the aforesaid case was not factually correct. I would, therefore, proceed on the assumption that since 1954 respondent no. 1 have been adopting the aforesaid principles in the matter of promotion of the members of the State Health Service to teaching posts in Medical Colleges of the State. In the circumstances, respondent no. 3 can derive an advantage of his seniority in the cadre of the State Health Service and his better professional qualil1cations only if it is found that both he and the petitioner had equal teaching experience." 27. Reliance was also placed on Dr. C M. Srivastava v. The State of Bihar where in paragraph 49 at page 205 it was observed that in dealing with a case of promotion, an appointing authority would not be justified ill preferring a junior officer even though he might possess higher academic qualifications than officers who were senior to him, for the simple reason that a senior officer could not be passed over in the matter of promotion simply because there were officers with better qualil1cations junior to him. It was only where the superior post was a selection post that the principle of merit cum-seniority might legitimately be followed. But in ordinary cases of promotion it was usual to follow the principle of seniority -cum-merit, meaning thereby that a senior officer would be selected for promotion unless his merits or his service records did not show his fitness for the higher post. It followed, 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. 28 It was submitted on behalf of respondent no. It followed, 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. 28 It was submitted on behalf of respondent no. 2 of the present case that no material has been placed to show that the service record of respondent no. 2 did not show his fitness for the higher post to which he has been promoted. Reference was also made to Dr. Chhedi Chaudhary's case the relevant portion of paragraph J R whereof has already been mentioned. In paragraph 18 it was observed that there was a dispute between two parties with regard to the claim on seniority, depended the right of the parties to be promoted to the post of professor. In that case it was admitted on all hands that the deciding factor for the purpose of appointment to the post of professor was the length of teaching experience as a lecturer. In that view of the matter, in my opinion the above observation made in that case would not be of much avail.' In the present case, it may be noticed that there is acute controversy between the parties as to whether only length of teaching experience would be the determining factor, which was not in that case. On the contrary, it was admitted there on all hands that the deciding factor (or the purpose of appointment to the post of professor was the length of teaching experience as a lecturer. 29. Learned counsel for the respondents have down our attention to the observation made in an unreported judgment in Sharda Sahay's case particularly to paragraph 5, 21 land 22 thereof in order to show that there also the length of teaching experience was treated as the basis for the decision of a case between two rival claimants. 30. In my opinion, in none of these cases specific point was raised, as in the present case, as to whether only length of teaching experience should be taken into account and merit should not be taken into account while considering the case of promotion. 31. It appears that the State Govt. also in the past had been taking merit into consideration, while making such appointments. Reference may be made to the case of Dr. 31. It appears that the State Govt. also in the past had been taking merit into consideration, while making such appointments. Reference may be made to the case of Dr. Uma Kant Saran where, in paragraph 8, paragraph 5 of the counter affidavit filed on behalf of the State of Bihar on 29. 9. 1966 had been quoted. It will be pertinent to extract the relevant portion therefrom:- "In the matter of appointment to superior teaching post, although there are no statutory rules in taking its decision, the State Govt. has undoubtedly always kept in mind the appropriate factors namely merit and experience. As evidence of merit, the State Govt. has always kept in the academic qualifications of a candidate under consideration in accordance with the recommendation of the Indian Medical council, namely whether the candid at possessed a post graduate degree or M.S., whether he possessed F. R. C. S. or equivalent qualification in surgery. . . . . . ". The Government order, referred to above, which was communicated to the Principal, Darbhanga Medical College by Dr. B. B. Mukherjee, Deputy Director of Health Services (M) Bihar, in his letter no. II -4-2-l-55-12319/H dated 2.5.1955 also, in my opinion, goes to show that merit has to be taken into account: The learned Advocate General and other counsel for the respondents, however, contented that the said order can not be treated as a statutory rule, but it is simply an administrative order. That however, in my opinion, does not mean that the said order would not be followed. Reference may be made to Union of India V. K.P. Joseph AIR 1973 SC 303 where it was observed that "to say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which Confer rights and impose duties. It is because an administrative order can abridge or take away rights that Courts have imported the principle of natural justice. . . . ". Reference may also be made to Tara Singh V. State of Rajasthan I5 in which AIR 1973 SC. 303 was relied. It was observed that although the Govt. could not supersede statutory rules by administrative instructions yet if the rules framed under Article 309 of the Constitution were silent on any particular point the Govt. . . . ". Reference may also be made to Tara Singh V. State of Rajasthan I5 in which AIR 1973 SC. 303 was relied. It was observed that although the Govt. could not supersede statutory rules by administrative instructions yet if the rules framed under Article 309 of the Constitution were silent on any particular point the Govt. could fill up gaps and supplement the rules and issue instructions not inco'1sistent with the rules already framed and those instructions would govern the condition of service. The Advocate General, then submitted that the said direction has been superseded by the Mukhopadhyay committee's report which was adopted by the State Govt. " 32. In my view the direction contained under letter dated the 2nd. May, 1955 was not superseded by the Mukhopadhyaya Committee's report which was set up to make re-Commendation for the appointment as a Lecturer and Professors. It mentions that before examining cases of individual candidates or preparing panel of name for the post of professors and Lecturers in different subjects, the committee examined the under mentioned papers in the context of the decision taken by the committee at its meeting held on the 27th. August, 1973. Among other papers in item no.1 is noted, Health Department's letter no. IIP 462-55-12319/H dated the 2nd of May, 1955". The committee after referring to those papers mentioned that on a perusal of papers available to the Committe, the Committee came to the conclusion that Government instructions, decisions, conversion and orders, issued from time to time, with regard to the appointment of posts of Lecturers and Professors might briefly be stated as follows: - Among others, under item no. 5 the Committee noted for appointment to the post of Professors, length of teaching experience as a Lecturer in the subject shall be the deciding factor. When teaching experience as a lecturer of two or more officers are of equal duration, their seniority in Health Services Cadre shall determine their interse position. Therefore, in my opinion, the above recital was merely summarisation and it was not recommendation of the committee, nor it can be said that the committee had superseded the previous Government order contained under letter dated the 2nd. May, 1955. Therefore, in my opinion, the above recital was merely summarisation and it was not recommendation of the committee, nor it can be said that the committee had superseded the previous Government order contained under letter dated the 2nd. May, 1955. It may be mentioned here that by reference to the original file it appears that the said committee was set up to fill up the posts of Professors and Lecturers which had fallen vacant in the State Medical College. The relevant portion of the said original file read thus:- ^^layXu lafpdk dk irkdk ,d ns[kk tk; ftlds vuqlkj jktdh; fpfdRlk egkfo|ky;ksa esa izk/;kidksa ,oa O;k[;krkvksa ds fjDr inksa ij U;wure vof/k esa fu;qDr djus ds mn~ns’; ls jkT; ljdkj us ,d lfefr dk xBu fd;k FkkA** English version of this portion runs thus :-. "Flag L of the link file may be perused, according to which the State Govt. had formed a Selection Committee for the purpose of appointing Professors and Lecturers to vacant post in Govt. Medical Colleges within the shortest period." Therefore, it is apparent that the said Committee Was not set up in order to suggest any rule or to lay down any principle for the appointment and promotion to the medical officers. It may be re-called that the learned Advocate General had contended that there is no statutory rule regarding the appointment and promotion in the Medical Colleges. He had urged that the Sergeants Major Rule was not applicable in their case, as there are special provision regarding the appointment and promotion in Medical Colleges on the basis of length of teaching experience, based upon the Mukhopadhyaya Committee's report, which was accepted by the State Government. According to the learned Advocate General, it (the surgeants Major Rule) applied only in case of appointment in any cadre of Government service. According to the learned Advocate General, it (the surgeants Major Rule) applied only in case of appointment in any cadre of Government service. In my judgment it would be difficult to limit the Scope of the Sergeants Major Rule which has been conceded that it has statutory force in view of the notification dated the 15th April, 1950 published in Part II of the Bihar Gazettee dated the 26th, April, 1950 which reads thus :- "No. 3555-27/50A-In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Bihar is plea- 'All enactments, rules and orders, whether made under any enactment or otherwise, which regulated the recruitment and condition of service of persons appointed to public services and posts in connection with the affairs which are now the affairs of the State of Bihar and which were in force immediately before the 26th. January, 1950, shall, until provision is made by or under an Act, of the State Legislature to regulate such recruitment and condition of services be enforced as if they had been made by virtue of the powers under the said proviso." By order of the Governor of Bihar Sd/-L.P. Singh. Chief Secretary, Bihar." Under memo no. 2763-A, dated the 15th. July, 1944, the Chief Secretary to the Government of Bihar had written to the other Departments of Government as follows:- ,'Government have recently had under consideration the question whether the seniority of an Inspector or Sergeant Major on substantive promotion to the rank of the Deputy Superintendent of Police should depend upon his length of officiating service as Deputy Superintendent of Police or on his seniority in the gradation list of Inspectors or Sergeants Major. It has been decided that length of officiating services should not be the criterion of deciding seniority on substantive promotion tothe higher service but that the following procedure should be followed uniformity in making promotions to higher services and in determining the seniority of officers on promotion. 32. A definite decision regarding the fitness of officers for promotion to the higher service should be taken not when officers are promoted to officiating vacancies but when substantive vacancies occur. 32. A definite decision regarding the fitness of officers for promotion to the higher service should be taken not when officers are promoted to officiating vacancies but when substantive vacancies occur. In making this decision the policy should be to reject rigorously all those who are unfit for promotion i. e. all those who are not definitely fit for the higher posts and subject to the condition, to promote by seniority. Thus if more than one officer has to be promoted to the post of Deputy Superintendents of Police on the same day, their seniority inter se should depend on their seniority as Inspectors or Sergeants Major, provided all of them satisfy the criterion of fitness. His Excellency has decided that the above principles should also be followed by other departments of Government while making promotions "to the services under their administrative control." It may be noticed that the Sergeants Major Rule never came for consideration in any of the cases referred to above which related to the Medical officers, nor there was any specific occasion to consider the said rule, nor it seems that the said rule was ever placed before the Court for consideration. The said rule also indicated that only length of teaching experience can not be considered as a criteria for appointment and promotion. In other words, merit should also be taken into account. Even if I ignore the above statutory rule, I find that there are indications that in case of appointment or promotion of doctors or Medical Officers, the principle of seniority-cum-merit should be followed. Even in Mukhopadbyaya Committee report(Annexure 9) I find that while recommending for two posts of professors in Medicine it was mentioned that eight persons (names therein) were eligible for appointment and their names were arranged in order of merit. Among them two persons, mentioned at the top, according to merit, were no. I Dr. Swami Nandan Prasad and no. 2 Dr. Brahmanand Sinha. Similarly, while recommending for one post of Director-Professor in Surgery the Committee mentioned in its report that only two professors of Surgery were eligible for that post. The names, placed in order of merit, were of (i) Dr. R. V. P. Sinha and (2) Dr. D, N. Sahi. A reference may be made to the observation of G. N. Prasad, J. in paragraph 49 of the Judgment in Dr. Srivastava's case (supra) at page 205. The names, placed in order of merit, were of (i) Dr. R. V. P. Sinha and (2) Dr. D, N. Sahi. A reference may be made to the observation of G. N. Prasad, J. in paragraph 49 of the Judgment in Dr. Srivastava's case (supra) at page 205. The relevant portion of his observation read thus:- ".....It is only where the superior post is a selection post that the principle of merit cum-seniority may legitimataly be followed. But in ordinary case of promotion, it is usual to follow the principle of seniority cum-merit......" 33. On behalf of the petitioner reliance was placed in the case of Dr. Hari Prasad Vs. The State of Bihar and others AIR 1972 Pat 4 where it was observed in paragraph 8 that "it is beyond any debate that merit counts foremost in the matter of promotion to the selection grade posts," But in my view said case related to the selection grade post. In the instant case we are not concerned with the promotion of the selection garde post. Therefore, the principles of seniority-cum-merit would apply in the present case. In view of the observation of Krishna Iyer, J. in paragraph 26 of the judgment (AIR 1975 Supreme Court 192) (Supra) I have no hesitation in holding that in case of promotion of doctors their academic attainments and the intellectual ability etc. has to de considered in order to' promote the public welfare. 34. Learned Advocate General then submitted alternatively that even if when the length of teaching experience is taken into account for the sake of appointment and promotion in ease of doctors, impliedly the merit also comes in. He referred to Annexure 4' to the writ application to show that in the present case while preparing the memorandum, consideration was also made of the merit. It may be recalled that under Annexure 4' only the names of respondent nos. 2 to 5 were mentioned as they were appointed as teachers on the 20th. of August, 1965 and their length of teaching experience was considered from that date. It may be recalled that under Annexure 4' only the names of respondent nos. 2 to 5 were mentioned as they were appointed as teachers on the 20th. of August, 1965 and their length of teaching experience was considered from that date. Learned Advocate General has drawn our attention to paragraph 4 of Annexure 4' which reads thus : 1- Mk0 gfjukjk;u oekZ 2- Mk0 ,l0 ds0 ljdkj 3- Mk0 vkj0 ,u0 Bkdqj 4- Mk0 egsUnz izrki flUgk mi;qZDr izFke pkj fpfdRldksa dks O;k[;krk ds in ij ‘kSf{k.kd vuqHko cjkcj gSA f’k{kdksa dh fu;qfDr esa iwoZ ifjikVh ds vuqlkj leoxhZ; ojh;rk gh O;k[;krk ds in budh ikjLifjd ojh;rk dk fu.kkZ;d gksxkA rnuqlkj Mk0 gfjukjk;.k oekZ leoxZ esa ojh; gksus ds dkj.k izk/;kid ds in fu;qfDr ds fy;s izFke ojh;re ,oa ;ksX; fpfdRld gSA Paragraph 4 means that all the four doctors referred to above had equal teaching experience. Since Hari Narain Verma (respondent no. 2) is senior to the other three in cadre, he should be considered fit for the appointment of Professor, and he is meritorious also. In my view since Annexure 4 does not mention the name of the petitioner, it is obvious that he was not considered. Therefore, neither his length of teaching experience nor about his merit, there is any mention in Annexure 4. Paragraph 18 of the counter affidavit filed on behalf of the State of Bihar {respondent no. 1) referred to above, clearly indicates that the petitioner was not even considered, because his teaching experience as Lecturer was less than the others. 35. In the instant case an application was filed by the petitioner under section 151, order 11, rule 14 of the Civil Procedure Code praying to direct respondent no. 1 to produce the documents mentioned below ~- (1) The entire files concerning the appointment of respondent no. 2 as Professor of Surgery of P.W. Medical College, Patna; and (ii) The Memorandum and decision of the Bihar Govt. in regard to the appointment of respondent no. 2 as Professor of Surgery in P. W. Medical College, Patna, On the 12th, April, 1976 it was ordered that the learned Government Advocate should keep those documents ready for perusal of the Court. The learned Advocate General in all fairness has brought with himself the relevant rile. He also produced the Govt. 2 as Professor of Surgery in P. W. Medical College, Patna, On the 12th, April, 1976 it was ordered that the learned Government Advocate should keep those documents ready for perusal of the Court. The learned Advocate General in all fairness has brought with himself the relevant rile. He also produced the Govt. file regarding the proposal for appointment of Professor of Surgery in the post which had originally fallen vacant in Rajendra Medical College, Ranchi due to vacancy caused by the retirement of Sri P. N. Jaiswal, Professor of Surgery which contains how the file had moved and ultimately the appointment of respondent no. 2 and 3 were made by the Chief Minister. A reference to the said file also does not show that the petitioner was considered, as according to respondents, the main criteria was the length of teaching experience, and since the length of teaching experience of the petitioner was less than other four doctors, referred to above, he was not considered. The petitioner bas brought on record the materials to show that be possessed merits and also requisite length of teaching experience. Although his length of teaching experience as the lecturer was less than the other four, but in the combined gradation list which was published in the extra ordinary Gazette dated the 6th March, 1968, the petitioner's name finds place at serial 176 and respondent no. 2 at serial no. 315, respondent no. 3 at serial 374, respondent no. 4 at serial 386 and respondent no. 5 at serial 533. 36. In paragraph 13 to the reply made by the petitioner to the counter affidavit of respondent no, 2, he stated that his experience as specialist was longer than that of the respondent no. 2. He further stated therein that it was consistently held by the Govt. that a teacher getting a Civil Surgeon's scale of pay was considered as specialist which the petitioner was getting since April. 1962 much before it became available to respondent no. 2 in the year 1971. In order to find support to his statement he has annexed copy of Govt. orders under Annexure 8' series. 37. It was contended on behalf of the counsel for the respondent no. 2 that the appointment of the petitioner as lecturer of Surgery was with effect from the 14th. September, 1968 and that too was on ad-hoc basis. In order to find support to his statement he has annexed copy of Govt. orders under Annexure 8' series. 37. It was contended on behalf of the counsel for the respondent no. 2 that the appointment of the petitioner as lecturer of Surgery was with effect from the 14th. September, 1968 and that too was on ad-hoc basis. Similarly, in paragraph 18 of the counter affidavit of respondent no. 1 it was stated that respondent no. 2 was continuing to hold the post of Lecturer (surgery) with effect from the 20th. August 1965 whereas the petitioner has been appointed as lecturer (Surgery) with effect from the 14th. Sept. 1968 temporarily in anticipation of concurrent: which has since been received and the proposal to regularise the aforesaid appointment is under consideration of the Government. In reply to the counter affidavit in paragraph 11(d) the petitioner has stated that finally the State Govt. by notification no. 4441(2) dated the 17th. August 1974, confirmed and regularised the appointment of the petitioner as permanent Lecturer of Surgery in the Patna Medical College, Patna. True copies of the relevant letters he has marked as Annexure 7' series to the reply to the counter affidavit filed by the respondent no. 2. 38. The petitioner's chief grievance, as it appears from his application as well as the various affidavits filed in reply to the counter affidavit of the respondents, is that only respondent nos. 2 to 5 were considered for promotion as Professor of Surgery and in fact respondent no. 2 was appointed as Professor of Surgery in Patna Medical College. Patna, whereas respondent no. 3 was appointed Professor of Surgery in the Rajendra Medical College, Ranchi and the petitioner who was more meritorious than those respondents was not considered at all. In one of the replies to the counter affidavit filed on behalf of the respondents, the petitioner has annexed the true copies of the various testimonials and correspondence marked as Annexure 10' series, which indicate that he had good academic carrier and he appears to be meritorious. ff I am permitted to borrow the words used by Krishna Iyer, J. in AIR 1975 Supreme Court 192 at page 198, the petitioner at the first flush looks like eligible and highly qualified but there may be more than meets the eye. ff I am permitted to borrow the words used by Krishna Iyer, J. in AIR 1975 Supreme Court 192 at page 198, the petitioner at the first flush looks like eligible and highly qualified but there may be more than meets the eye. Therefore according to me the petitioner has made out a case that he was entitled to be considered by the State Govt. for promotion as a Professor in Surgery. Prima facie it seems that the petitioner is a quite meritorious than respondent no. 2 the former, possessing the requisite length of teaching experience as well as being senior to respondent no. 2 in the specialty and in the combined cadre. However, it is for the State Govt. to investigate and be satisfied about the petitioner's real qualification vis-a-vis respondent no. 2 and 3. For affording a fresh opportunity so that the petition may also be considered, I quash the appointment of respondent no. 2 made under Annexure 5' to the writ petition and that of respondent no. 3 made under Annexure 6' and direct the State Govt. to consider also the case of the petitioner for promotion as Professor in Surgery. 39. In the view that I have taken, it was not very necessary to deal with the other submission of learned counsel for the petitioner, whereby he has challenged the appointment of respondent nos. 2 and 3, also on the ground that the procedure under rules 8, 12, 13, 15, 17 and 18 of the Rule of Executive Business were not followed. Since it has been argued at great length by the counsel for the parties, I propose to decide this matter also. Mr. Prasad referred to the statement of the petitioner in his application and replies filed by him to the various counter affidavits filed by respondents that the Chief Minister was not authorised by the council of Ministers to take decision in the matter of appointment to the post of Professor of Surgery in the Patna Medical College. The Council of Ministers never authorised the Chief Minister to divert the question of appointment to the post of Professor of Surgery in the Rajendra Medical College, Ranchi. The Council of Ministers never authorised the Chief Minister to divert the question of appointment to the post of Professor of Surgery in the Rajendra Medical College, Ranchi. Rule 8 provide, interalia, that subject to the orders of the Chief Minister under rule 12, all cases referred to in the Third Schedule to these rules shall be brought before the council in accordance with the provisions of the rules contained in Part II. Rule 12 provides: "All cases referred to in the Third Schedule shall be submitted to the Chief Minister through the Secy. to the Council after consideration by the Minister in charge with a view to obtaining his orders for circulation of the case under rule 13 or for bringing it up for consideration at a meeting of the council" Rule 13 provides: "(1) The Chief Minister may direct that any case referred to in the Third Schedule may instead of being brought up for discussion at a meeting of the council be circulated to the Ministers for opinion, and if the Ministers are unanimous and the Chief Minister thinks that a discussion at a meeting of the Council is unnecessary, the case shall be decided without such discussion. If the Ministers are not unanimous or if the Chief Minister thinks that a discussion at a meeting is necessary, case shall be discussed at a meeting of the Council. (2) If it is decided to circulate any case to the Ministers, copies of all papers relating to such case which are circulated among the Ministers shall simultaneously be sent to the Governor ." Rule 15 deals with the preparation of the memorandum of decision. It also provides what a memorandum should contain. Rule 17 provides, inter alia, where council shall meet and at such place and time as the Chief Minister may direct. It also provides circulation of copies of memorandum. Rule 18 provides : "Except as otherwise provided by any other rule, cases shall ordinarily be disposed of by Or under the authority of the Minister-in-charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the department. Copies of such standing orders shall be sent to the Governor and the Chief Minister," Third Schedule of the Rules gives list of cases which shall be brought before the Council of Ministers. Copies of such standing orders shall be sent to the Governor and the Chief Minister," Third Schedule of the Rules gives list of cases which shall be brought before the Council of Ministers. Item no, 9 of that Schedule refers to the appointment. There is no dispute that the appointment of respondents 2 and 3 came within the ambit of one of such cases, which were to be brought before the Council of Ministers under the Rule of Executive Business. 40. By reference to the original file it appears that the memorandum was prepared (a copy of which is marked as Annexure 4' to the application) as per note dated 11. 12. 75. It was placed before the Council of Ministers on 27. 12.75. On that date it was postponed' to be placed in the next meting. Sri Karam Chand Bhagat, Minister of Community Development, Housing and Public Health Engineering Department, called the file for perusal, which was sent to him on 6. I. 76. on 31.1.76 he proposed to the Health Minister that according to the qualification and seniority it would be better that respondent no. 2 be appointed as Professor in surgery in the ratna Medical College in the vacancy, which was likely to occur shortly, and the person junior to him be promoted as Professor in Surgery and posted at Ranchi Medical College. At page 12 of the file it is stated that the said proposal should be included in the agenda of the next meeting. On 17. 2. 76 the matter was placed before the Council of Ministers, which directed that the file might be placed before the Chief Minister, who was authorised to take final decision in the matter. On 25.2.76 the file was endorsed to the Secretary to the Chief Minister, for obtaining the order of the Chief Minister. The Secretary of the Chief Minister prepared a note on 1. 3. 76 when it was placed before the Chief Minister on 12. 3. 76, he passed final order for appointment of respondent no. 2. 41. Mr. Basudeo Prasad, therefore, submitted that in the particular case the above rules of executive Business had not been complied with and according to him these provisions are mandatory. In my opinion the submission of learned Counsel is not correct. 3. 76, he passed final order for appointment of respondent no. 2. 41. Mr. Basudeo Prasad, therefore, submitted that in the particular case the above rules of executive Business had not been complied with and according to him these provisions are mandatory. In my opinion the submission of learned Counsel is not correct. Article 154 of the Constitution provides inter alia that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the provisions made in the Constitution. Article 163 (l) of the Constitution inter alia lays down that there shall a Council of Ministers with the Chief Minister at the head to aid and ad vise the Governor in exercise of his function and clause (3) thereof reads thus: "The question whether any, and if so, what, advise was tendered by Minister to the Governor, shall not be enquired into in any court." Article 164 (I) provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister and the Ministers bold office during the pleasure of the Governor. Clause (2) thereof lays down that "the Council of Ministers shall be collectively responsible to the Legislative Asembly of the State." Article 166 provide as to how the business of the Government should be conducted and clause (3) thereof lays down that "the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to Act, in his discretion. From the above provisions of the Article it is clear that the Chief Minister plays very important role and he is vested with wide power under the Constitution. 42. Referance may be made to Bachhithar Singh V. Slate of Punjab AIR 1963 S. C. 395. In that case the provisions contained under Article 166 (3) of the Constitution and rules 28 (I) and 4 of the Punjab Rules of Business came up for consideration. 42. Referance may be made to Bachhithar Singh V. Slate of Punjab AIR 1963 S. C. 395. In that case the provisions contained under Article 166 (3) of the Constitution and rules 28 (I) and 4 of the Punjab Rules of Business came up for consideration. In paragraph 13 at page 390 their Lorships observed that the order passed by the Chief Minister, even though it was on a matter pertaining to the portfolio of the Revenue Minister, would be deemed to be an Order of the Council of Ministers. So deemed its contents would be the Chief Minister's advice to the Governor, for which the Council of Ministers would be collectively responsible. It will also be relevant to refer to Haridwar Singh V. Begun Sumbrui AIR 1972 SC 1242 where Article 166 (3) of the Constitution vis-a-vis rule 10 of the Bihar Rules of Executive Business came up for consideration. It was observed therein that no universal rule could be laid down for determining whether a provision in a rule was mandatory or directory. In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words could rarely be directory and were indicative of the intent that the provision was to be mandatory. It will further he useful to refer to N.P. Mathur V. State of Bihar AIR 1972 Pat 93 (F.B). In that case, inter alia Articles, 154, 163, 164, 166 vis-a-vis various rules of the Bihar Executive Business, including rule 8, came up for consideration. It was observed therein that the ultimate step taken in the matter by the Chief Minister must be held to be the result of decision of Council of Ministers. It could not be said that the Council of Ministers had illegally delegated their function of dealing with question of appointment of the Chief Secretary to the Chief Minister. Sinha, C. J. in paragraph 21 at page 105 observed thus: ". . . . .. It could not be said that the Council of Ministers had illegally delegated their function of dealing with question of appointment of the Chief Secretary to the Chief Minister. Sinha, C. J. in paragraph 21 at page 105 observed thus: ". . . . .. Moreover, I do not think that the Court will be justified in inquiring into the matter mentioned in paragraph 17 of the writ application, where it was stated that the Council of Ministers decided at a meeting held on 17th June, 1970 that the Chief Minister be authorised to take a decision regarding the appointment of the Chief Secretary and' grievance made in paragraph 36 to the effect that the Council of Minister can not delegate its power to another authority. " 43. Besides, in the present case the notes which were prepared by the Secretary to the Chief Minister, give fuJI details and also mentions that apart from the Minister for Community Development, Housing and Public Health Engineering, several other Ministers have opined that some delay does occur in postings. As one more post has subsequently fallen vacant, the senior most lecturer Dr. Verma, may, in accordance with the principle decided, be posted as professor in the Patna Medical College Hospital and other officer having request qualifications be posted at Ranchi in order of preference. Therefore, it is apparent that not only the Chief Minister was authorised by other ministers to pass final order but also it was the desire of other Ministers that Dr. Verma be so appointed. Therefore, there is no merit in the submission of learned Counsel for the petitioner. 44. The petitioner has also prayed for dt termination of his seniority vis-a vis respondent nos. 2 to 5 for the purpose of appointment to the post of Professor in Surgery in the Patna Medical College and to rectify the gradation list by declaring the petitioner senior as lecturer in surgery to respondent nos. 2 to 5. It was urged that the memorandum (Annexure 4) was prepared On the basis of the said seniority, and, as such, it was bad and should be quashed. The petitioner has not however, placed sufficient materials before us to rectify the gradation list nor necessary parties are on the record to enable us to interfere with the gradation list. Respondent no. It was urged that the memorandum (Annexure 4) was prepared On the basis of the said seniority, and, as such, it was bad and should be quashed. The petitioner has not however, placed sufficient materials before us to rectify the gradation list nor necessary parties are on the record to enable us to interfere with the gradation list. Respondent no. 5 in paragraph 8 of the counter affidavit has stated that the petitioner was also superseded by Dr. Rambali Singh, who was appointed lecturer in the year 1966. Dr. Rambali Singh happened to be junior to respondent no. 2 to 5 but was senior to the petitioner. That shows that petitioner can not get such a declaration in absence of Dr. Rambali Singh, In that view of the matter Mr. Basudeo Prasad, learned Counsel for the petitioner, has not raised specific point for rectifying the gradation list and declaring the petitioner as senior to respondents 3 to 5. Therefore, Annexure 4' can not be assailed on the ground that it was based on incorrect gradation list. 45. In conclusion, however, for reasons indicated earlier, I allow the writ application of the petitioner in Part, and quash the appointment of respondents no. 2 (Dr. H. N. Verma) and respondent no. 3 (Dr. S. K. Sarkar) made under Annexure 5' and 6' respectively and direct the State Government to consider also the case of the petitioner for promotion as Professor in Surgery vis-a-vis respondent no 2 and 3 on the basis of their respective merits in the light of the observations made in this judgment. While I have indicated the broad approach, it is within the power and responsibility of the Government to take all relevant considerations in making the final choice. It is also open to the Government to consider other eligible doctors on their merit and teaching experience. In the circumstances, I shall make no order as to costs. Application allowed.