JUDGMENT TULPULE J. - This petition raises a short question of interpretation of the rules framed by the State of Maharashtra, respondent No.3 to this petition. governing the appointments to the post of Housemen in the State. The relevant Resolution No. MCG-2571-24499-Q was passed on the 26th of June 1971. 2. The facts giving rise to this petition are no more in dispute. The petitioner was successful in his final M B.B S. Examination and had also done a Houseman's job in general medicine between the period from 1st August 1977 to 31st January 1978. Rules for the appointment of Housemen provide that these posts should be advertised every six months and applications would be invited by the concerned authorities at the end of January and again at the end of July every year. Accordingly applications were invited on the 27th January 1978 for appointment to the post of Housemen and Registrars at the Indira Gandhi Corporation Medical College, Nagpur by the Dean. The interviews were to be held on the 28th and 30th January 1978 for posts on the College side and on the hospital side, a distinction which has been made by the authorities to which we shall come later. 3. The petitioner applied for both the posts i. e. one on the College Side as well as on the Hospital side. On the 31st of January 1978, it appears that he was given an appointment as a Houseman on the general medicine side in the branch of skin and venereal diseases. It may be stated that he was not called for interview on the 29th of January 1978. 4. The petitioner in his application had given as required, three preferences in order of priority. His first preference was Paediatrics; second preference was Paediatrics O. P. D. and third was I. C. U. It will thus be seen that the petitioner was unsuccessful in getting the post on his first preference side, namely. paediatrics. As the advertisement would indicate there were four posts on the College Side for paediatrics. These four posts admittedly were filled in by persons possessing higher merit than the petitioner. 5. The next material event took place on the 6th of February 1978. On that date Dr. paediatrics. As the advertisement would indicate there were four posts on the College Side for paediatrics. These four posts admittedly were filled in by persons possessing higher merit than the petitioner. 5. The next material event took place on the 6th of February 1978. On that date Dr. Swadi who was amongst the; selected candidates for appointment to one of the four posts in Paediatrics resigned I as he got registration for Diploma in Child Health at Pune. Immediately on his resignation, the petitioner applied to the Dean, Indira Gandhi Corporation Medical College, Nagpur for being posted and given this appointment in Paediatrics in place of Dr. Swadi who had resigned. His request was turned down. He made a representation on the 7th February 1978 to the Dean which was also rejected. In the meantime, Dr. Mishra, who is respondent No.2 before us, came to be appointed on the 6th February 1978 to the post vacated by Dr. Swadi. It was then that the present petition came to be filed praying therein a writ requesting that the order passed rejecting his representation on the 7th February 1978 be quashed and a writ of mandamus directing respondent No.1 to appoint the petitioner in place of Dr. Swadi as a House Officer in Paediatrics. 6. Respondent No.2 Dr. Mishra in his return raised a couple of preliminary objections to which we shall come at a later stage. He contended firstly that the petition involved determination of disputed questions of fact and Jaw and, therefore, the petition should not be entertained and secondly that the petitioner had made certain false allegations in his averments. It may be mentioned that neither of these preliminary objections were sustained or sought to be substantiated and urged before us at the time of the hearing of this petition. On the contrary, a contention was raised by Mr. Daga who appeared for the respondent No.2 that the present petition cannot be maintained as the petitioner did not prefer an appeal against his non-selection and interview on the 29th January 1978. The other contentions raised by Mr. On the contrary, a contention was raised by Mr. Daga who appeared for the respondent No.2 that the present petition cannot be maintained as the petitioner did not prefer an appeal against his non-selection and interview on the 29th January 1978. The other contentions raised by Mr. Daga on behalf of the respondent No.2 were that upon a true and correct interpretation of rule XI which covered the question, the petitioner was not entitled during the tenure of this house post for a period of six months to change from one post to the other and the second was that an appointee was not entitled to change the subject during the period of tenure either in the same College or in any College or hospital. 7. The return of the respondent No.1 also is similar. As we pointed out above, respondent No.1 did not dispute that the petitioner had approached upon the resignation of Dr. Swadi the Dean, Indira Gandhi Corporation Medical College Hospital, Nagpur for being appointed in place of Dr. Swadi. It was also not disputed that his request was rejected and Dr. Mishra was appointed. The ground for rejecting the request of the petitioner, according to the respondent No.1, was the same, namely, that the petitioner was not entitled to change a subject or to change a post from one Hospital to the other during the tenure of his appointment which was for a period of six months. In other words, it was even according to the respondent No. I, upon a correct interpretation of the rule framed by the Government in this behalf the petitioner was not entitled to be appointed to the post vacated by Dr. Swadi and that Dr. Mishra who was appointed in his place having given his second preference as Paediatrics was appointed to that post. The respondent No.3, the State of Maharashtra, has not filed any return. 8. As we pointed out. Swadi and that Dr. Mishra who was appointed in his place having given his second preference as Paediatrics was appointed to that post. The respondent No.3, the State of Maharashtra, has not filed any return. 8. As we pointed out. the only question which falls for determination in the present petition is whether the petitioner was entitled to a change of subject which would not involve as a matter of fact a change in the post because the post of a Houseman whether in the subject of paediatrics or in the subject of skin and venereal diseases was only the post of a Houseman and only question, therefore, which we have to decide is whether the petitioner was entitled to a change of subject during his tenure as a Houseman to which he was appointed on the 31st of January 1978. 9. It may be mentioned that apart from this question which falls for interpretation at our hands of Rule XI of the Resolution in question, some other questions were also raised. For instance, it was contended that the petitioner was unjustly and wrongly not called for interview on the 29th January particularly since he had applied for appointment on both the establishments. It was also urged that this distinction made by the College authorities which gave rise to the notice dated 27th January 1978 that persons appointed on the Hospital side will not be called for interview on the Civil Surgeon side was an erroneous and invidious distinction not permitted by the rules. It was pointed out that the Corporation Medical College has no hospital as such and that it is the Mayo General Hospital which is attached to that College. On the other hand; it was not disputed on behalf of the respondent No.1 that that was so, but what was contended was that some of the wards in Mayo General Hospital were placed under the control of the Dean, Corporation Medical College and that is how, this distinction seems to have come up and brought in by the concerned authorities. In the view, which we have taken in regard to this matter, it is not necessary for us to go into this question or to decide whether what was done by the authorities was proper or otherwise. 10. It is on this situation or set of facts that Mr. In the view, which we have taken in regard to this matter, it is not necessary for us to go into this question or to decide whether what was done by the authorities was proper or otherwise. 10. It is on this situation or set of facts that Mr. Daga contended that the petitioner ought to have preferred an appeal against his non-selection and not being called for interview on the 29th within a period of 3 days. The short answer to that contention is that the petitioner could not have raised an)'· contention against the selection of 4 superior candidates in merit than him and, therefore, any appeal which he could have filed within 3 days from 31st would have been fruitless. Besides what the petitioner is now asking us is not as to what happened on the 31st, or rather on the 1st February for that matter, but as to what took place on the 6th and 7th February 1978. 11. We will now directly go to rule XI which is the basis of the controversy in the present case. It is necessary to reproduce that part of the rule in order to understand the controversy and to determine the rival interpretations which were put before us. That rule is in these terms: “A candidate once appointed as Houseman in a particular subject shall not apply for a similar post in another subject in the same or another hospital during his tenure of 6 months. The change from one post to other is only permitted within seven days of commencement; Now it is this rule which is relied upon both by the petitioner as well as by the respondents 1 and 2 support their rival contentions. On behalf of the petitioner it is contended that upon a correct interpretation of the rules a person appointed as a Houseman would be entitled to a change of post i. e. to be transferred or to be posted to a similar Houseman's post in the same subject at any time during his tenure in any other hospital where of course there exists a vacancy of the same post. It was further submitted that he could also apply for a change of subject for a similar post of a Houseman either in the same or any other hospital but that he is entitled to do and must do only within the period of 7 days. In other words, according to the petitioner beyond the period of 7 days the only change which is permitted to a Houseman once appointed to a post is to be transferred to another hospital in the same post in the same subject. If he wanted a change in the subject that could only be done within a period of 7 days and after the period of 7 days is over, there is no transfer or change of subject permitted to an appointee. We are inclined to agree with this interpretation. 12. On the other hand, what was contended on behalf of the respondent No.1 was that this interpretation is incorrect and that no person is entitled to change of subject after appointment to a post. In this behalf, reliance was placed upon paragraph 3 of the same rule which says, 'the appointment shall be terminated by one month's notice on either side.' It was contended, therefore, that the petitioner since he was leaving his post as a Houseman in Skin and Venereal Diseases Department and was seeking a transfer or appointment to the post in paediatrics he had to give a one month's notice and since he did not give and he could not have given a month's notice, the petitioner was not entitled to terminate his appointment. According to Mr. Vaidya, therefore, rule XI negatives, if this construction were to be accepted, first paragraph of the rule which we have quoted above. It is not possible to accept this contention urged on behalf of the respondents 1 and 2. 13. It may be pointed out that what paragraph 3 speaks of is a termination of appointment. In this case the petitioner did not seek any termination of his appointment, but he merely sought to exercise a right which was given to him by the same rule in the first paragraph. 13. It may be pointed out that what paragraph 3 speaks of is a termination of appointment. In this case the petitioner did not seek any termination of his appointment, but he merely sought to exercise a right which was given to him by the same rule in the first paragraph. It is quite clear upon a proper interpretation of paragraph 1 of rule XI that the candidates after their appointment have been given a choice and that choice 13 to change or switch over provided there is a vacancy in a different subject and in a different hospital within a period of 7 days. Paragraphs 1 and 3 must be interpreted harmoniously and if they are so interpreted, we are satisfied that paragraph 3 must be so interpreted as not to be in conflict with paragraph 1. That could only be upon an interpretation or by holding that paragraph 1 overrides, if at all, paragraph 3. 14. As we pointed out, this did no~ involve a termination by the petitioner. But even assuming that this was a termination in the sense the petitioner was leaving his Houseman's post in Skin and Venereal Diseases Department, he was not really leaving the post of a Houseman, but asking for a transfer from one post to the other. If termination which is contemplated zin paragraph 3 were to take place, there has to be a severence of connection with the post. In the circumstances to which we have made a reference we do not think that that is what the petitioner was seeking. If, therefore, he was not seeking for a severence of himself from the post to which he was appointed, it seems to us that paragraph 3 has no application at all. 15. If we read paragraph 3 which provides for terms and conditions during the tenure of appointment, it will be clear, that a Houseman once appointed in a particular post provided there is a vacancy, would be entitled and can ask for a switch over to another hospital where a similar post exists from the one where he was at the time or at the moment may have been appointed. This he could do during the entire tenure of six months. The reason is obvious since he was merely changing from one hospital to the other. This he could do during the entire tenure of six months. The reason is obvious since he was merely changing from one hospital to the other. His education in that particular subject is not being interrupted and he continues his instructions in the same subject, whether in one hospital or the other. The entire set of rules is so devised that the students desiring post graduate instructions and experience should receive them without any hindrance and difficulty. If, therefore, an appointee Houseman sought a change over from one hospital to another hospital, may be on various grounds, such as better facilities in that hospital, nearness to home and some other grounds, it does not seem to be the intention .of the State to bar his way in doing so. This itself would suggest that a change is permitted even during a period of six months. The second sentence which follows this first sentence is obviously an exception to the first. The reference therein, therefore, to the words from one post to other clearly means a change which is impermissible by the first part of the sentence. As we pointed out, the first part of the sentence did not permit a change of subjects by a Houseman appointed either in the same or any other hospital. The exception which is thereafter provided is that this is only permitted within the period of 7 days in other words, therefore, upon a correct interpretation of this rule, the exception permitted a change of subject and also if that was possible and could be by a change of hospital but only within a period of 7 days. 16. The respondent No. 1, therefore, was in error in denying to the petitioner when in particular the post of Houseman had become vacant within a period .of 7 days in paediatrics which was his first choice. It may also be· mentioned at this stage that respondent No.2 Mishra who has been appointed in his place had given paediatrics as his second preference. Besides it is an admitted position that in merit the petitioner was better placed than Dr. Mishra. It may also be· mentioned at this stage that respondent No.2 Mishra who has been appointed in his place had given paediatrics as his second preference. Besides it is an admitted position that in merit the petitioner was better placed than Dr. Mishra. In the circumstances, the denial to him upon an improper and incorrect interpretation of rule XI by respondent No.1 or doing injustice to him could be corrected by a writ of mandamus and by quashing the order which has been passed by the respondent No.1 in this case. 17. We might say that this interpretation which we are putting on rule XI, paragraph I, was also conceded to and accepted by the respondent No.3, the State, as the correct interpretation. It was urged on behalf of the respondent No.2 that the petitioner is at present working in his post as a Houseman in Skin and Venereal Diseases Department. A period of a month and a half bad already elapsed. Besides respondent No.2 has been working in the Paediatrics Department as a Houseman during the last 11/2 months. By unsettling the present appointment and removing the respondent No. 2 great hardship and injustice would be caused to the respondent it was pointed out that even as regards the petitioner he would be unable to complete his six months of education and instructions in paediatrics inasmuch as in August 1978 the tenure of the appointment will come to an end. It was contended, therefore, that it would be improper and unjust at this juncture to upset the present arrangement and to remove the respondent No.2 and direct the petitioner being placed in his place. We are unable to agree with this argument. 18. It is plain that what the petitioner is asking for is remedying the breach of his fundamental right which he has of not being discriminated and treated equally before the law. As we have interpreted the rule, it is clear that the petitioner has been denied improperly the benefit of the rule. If that is so and if enforcement of his right is called for in a situation, we do not think that merely because upon an erroneous interpretation put by the respondent No.1 upon the rights of the petitioner injustice which has been caused to him should not be remedied. If that is so and if enforcement of his right is called for in a situation, we do not think that merely because upon an erroneous interpretation put by the respondent No.1 upon the rights of the petitioner injustice which has been caused to him should not be remedied. We also do not think that in such a case we can refuse on this specious ground to issue a writ of mandamus to the petitioner. Consequently, if there is some injustice to the respondent No.2, it cannot be helped and we may point out that the situation which has been brought about has not arisen out of a right and, therefore, the respondent No.2 cannot legitimately claim any right to the continuance of the situation erroneously brought about. 19. We may also point out in this connection that in a similar situation the Supreme Court also refused to continue such a situation and enforced the right of the petitioner in that case: (See R. C. Choksi v. State of Gujrat1). It cannot, therefore, be helped if respondent No.2, in the circumstances, were to suffer. 20. The result, therefore, is that the petition succeeds. Order passed by the respondent No.1 on 7th February 1978 is quashed appointing respondent No.2 to the post of Houseman in Paediatrics. Instead, respondent No.1 is directed to appoint the petitioner in the post of Houseman in Paediatrics Department forthwith. There will be no order as to costs of this petition. Petition allowed