Order This writ application has been filed for quashing the resolution of the State Government dated 31.8.1989 as also the notification dated 5.3.1993. contained in Annexure-5 series, whereby and whereunder, Dr. R.A. Kanojia (respondent no. 5) had been posted against the newly created post of Assistant Professor in Hand and Micro Vascular Surgery, Department of Orthopaedics, Patna Medical College & Hospital, Patna. Prayer is also to direct the respondent-authorities to fill up the post after proper advertisement and considering the claim of all other eligible candidates, who may be desirous for appointment including the petitioner. 2. I have heard learned counsel appearing on behalf of the petitioner as also the State and respondent no. 5, therefore, this writ application is being disposed of at the stage of admission itself. 3. Before coming to the main controversy involved in this case, it would be appropriate to have a brief survey of some of the facts: In the year, 1987, the State Government advertised various posts including that of Assistant Professor (Orthopaedics). Pursuant thereto, the petitioner as well as respondent no. 5 along with several others applied for such posts. The claim of the petitioner is that he was placed at serial no. 6 of the panel whereas respondent no. 5 at serial no. 12. But the petitioner could not be appointed, as only five vacancies in general category were available. Dr. Kanojia (respondent no. 5) got his appointment against the quota of the candidate, belonging to reserved category and, accordingly, he was posted at Patliputra Medical College, Dhanbad, vide a notification dated 29.5.1990. 4. It appears even before the appointment of respondent no. 5 as Assistant Professor on the basis of 1987 panel could be made, by a resolution no. 458 (1) dated 31.8.1989, as contained in Annexure-5, a decision of the State Government was communicated that a separate unit in Hand and Micro Surgery Unit has been created, consisting of ten beds in the Orthopaedics and Surgery Department of Patna Medical College & Hospital. It \'Jas indicated that after conversion of one post of Assistant Professor of the Department Dr. Kanojia would be posted against such post but the present unit shall be under the administrative control of Head of Department (Orthopaedics). Ultimately in terms of the decision, as contained in Annexure-5, Dr. Kanojia was posted on deputation on the post in question vide a notification dated 28.7.1990. 5. Kanojia would be posted against such post but the present unit shall be under the administrative control of Head of Department (Orthopaedics). Ultimately in terms of the decision, as contained in Annexure-5, Dr. Kanojia was posted on deputation on the post in question vide a notification dated 28.7.1990. 5. Thereafter on 5.3.1993 a formal notification with regard to creation of post and posting of respondent no. 5 on substantive basis against the post in question was issued. 6. The grievance of the petitioner is that while posting respondent no. 5 against the newly' created post of Assistant Professor, the Government has violated the principles of equality, as guaranteed under Articles 14 and 16 of the Constitution. Admittedly, the post in question was never advertised for inviting applications from the eligible candidates. The appointment and posting of respondent no. 5 was in utter disregard and violation of the prescribed procedure of the State Government. Such appointment was never routed through the duly constituted Establishment Committee, nor approval of the Departmental Minister, who in the instant case is the Chief Minister, was ever obtained. The petitioner claimed that although he possesses all the requisite qualifications for appointment as Assistant Professor against the post in question but as the post was not advertised, he could not apply. 7. It was contended even assuming respondent no. 5 had some specified knowledge in the field of Hand and Micro Surgery, this can not be a ground for State Government to circumvent the constitutional guarantee, contained in Article 16 of the Constitution. The 'post of Assistant Professor in the concerned subject, was newly created, therefore, it had to be filled up after proper advertisement and giving equal opportunity to all intending candidates, who were duly qualified for such appointment. It is urged that the Supreme Court as well as this Court on several occasions deprecated the practice of back-door entry. Admittedly, the post in question was newly created, therefore, it could only be filled up after adopting all the procedures for direct recruitment. 8. A counter affidavit has been filed on behalf of respondent nos. 1 to 4, stating therein, that the unit in question is a wing of Orthopaedics Surgery and it has no separate sanctity. Dr. Kanojia, who was holding a post of Assistant Professor in the Department of Orthopaedics, was only adjusted against this post. Therefore, there was no question of fresh appointment. 1 to 4, stating therein, that the unit in question is a wing of Orthopaedics Surgery and it has no separate sanctity. Dr. Kanojia, who was holding a post of Assistant Professor in the Department of Orthopaedics, was only adjusted against this post. Therefore, there was no question of fresh appointment. It is further stated that the State Government, having considered the unparallel qualifications and experience of respondent no. 5 as also having noticed that he was a candidate of reserved category, took a decision to appoint and post him against the post in question. The petitioner, having no requisite qualification for appointment as Assistant Professor against the post in question, has no right to maintain the writ application on the basis of the grievances herein. 9. A separate counter affidavit has also been filed on behalf of Dr. Kanojia (respondent no. 5). Mr. Mukherji, appearing on his behalf, contended that since the petitioner does not possess essential qualifications for the post of Assistant Professor, Hand and Micro Surgery, he can not be permitted to challenge the posting of respondent no. 5. He further submitted that on the other hand, respondent no. 5 has already been awarded Ph. D. Degree in the Hands and Micro Surgery from one of the most prestigious and reputed University like Hirosima School of Medicine. That apart, he had also experience of working on this subject in different Hospitals in foreign countries. 10. On the other hand, Mr. Sunil Kumar, learned counsel appearing on behalf of the petitioner, also referred different certificates, obtained by his client in Advance Micro Surgery, Hand and Micro Vascular Surgery, 11. A question, thus, arises whether the newly created post of Assistant Professor, Hand and Micro Vascular Surgery can be filled up without any advertisement and recommendation of the duly constituted Selection Committee? 12. It is well established and settled policy of the State Government to fill up all the posts of Assistant Professors in different Medical Colleges after inviting applications by publishing and advertising the same in the Newspapers and then preparing a panel after considering relative merits of the candidates, who submit their applications on such advertisements. It is also known that for such appointments from time to time, panels are prepared with respect to each post on merit. This is admitted case of all the parties that the post in question was never advertised. It is also known that for such appointments from time to time, panels are prepared with respect to each post on merit. This is admitted case of all the parties that the post in question was never advertised. But the respondents have tried to justify their stand, that respondent no. 5 was already working as Assistant Professor in Orthopaedics Department, therefore, judging his efficiency as also since he had Ph. D. Degree of superspeciality, which can be one of the conditions to fill up the post, the State Government decided to cancel his deputation and absorbed him as Assistant Professor, Hand and Micro Vascular Surgery. Apart from the aforesaid, a stand has also been taken that respondent no. 5 was a candidate belonging to the reserved category. 13. The further stand of the respondents is that the subject known as 'Hand and Micro Vascular Surgery' is in the category of superspeciality. The petitioner having no Ph. D. Degree of superspeciality in such a subject has no legal right to question the appointment and posting of respondent no 5 against the post in question. 14. There is no dispute that respondent no. 5 has a Ph. D. Degree in the subject as also wide experience of working in different hospitals even at abroad. But no statutory rule or any circular of the State Government has been brought before me to suggest that in such cases, appointment against a newly created post of Assistant Professor can be made without any advertisement and judging the relative merits of the candidates, who are eligible for such appointment. It is well known that Articles 14 and 16 of the Constitution provide that all citizens are entitled to get equal opportunity in obtaining appointments in State Services. Therefore, in order to fulfil such conditions and safeguard constitutional mandate, it would be necessary to give opportunity to all eligible candidates for such appointment. Thus, unless the vacancy is notified by advertising through newspapers or any other different mode, candidates who possess requisite qualifications, can not get an opportunity to apply for such post. This aspect of the matter has been considered by this Court in various cases. Thus, unless the vacancy is notified by advertising through newspapers or any other different mode, candidates who possess requisite qualifications, can not get an opportunity to apply for such post. This aspect of the matter has been considered by this Court in various cases. A reference in this regard can be made to the case of Mahender Ram vs. Deputy Commissioner, Palamau & ors., reported in 1989 B.L.T. (Rep.) 27, wherein it was held as follows: "Article 16 of the Constitution guarantees to every citizen equality of opportunity in matters relating to employment or appointment to any office under the State. The Article makes it clear that not only citizens must have opportunity in matters relating to employment or appointment to any office under the State, such opportunity must also be equal. This is the constitutional mandate. If an appointment is made in breach of the provisions of Article 16 of the Constitution, such an appointment is not irregular but is invalid, and, if brought to the notice of a Court, the same must be quashed. In the instant case, the post to which the petitioner was appointed was never advertised Consequently, no other, citizen had any opportunity to apply for appointment to the post. There was, therefore, no opportunity for any other citizen for' appointment to the post to which the petitioner was appointed. In these circumstances, it was not a case of equality of opportunity, but, complete absence of opportunity so far as other citizens were concerned." 15. This aspect of the matter has also been noticed by this Court in the case of Kamal Kumar Singh vs. I.G.I.M.S., reported in 1990 (2) P.L.J.R. page 465. 16. In the case of B.S. Minhas vs. Indian Statistical Institute & ors. reported in 1984 S.C. 363 also the Supreme Court while examining identical question, held thus:- “If the vacancy in the post of Director had been published as contemplated by bye-law 2, all the persons eligible for the post may have applied and in that case, the field of consideration would have been enlarged and the selection committee or the council would have had a much larger field from which to choose the best available person and that would have removed all doubts of arbitrariness from the mind of those eligible for the post.” 17. It would also be appropriate to notice the case of J. & K. Public Service Commission & ors. vs. Dr. Narinder Mohan & ors., (1994) 2 S.C.C. 630 , wherein, it was held that in order to meet constitutional requirement appointments in different institutions have to be made in a air manner. Where the procedures, prescribed to make appointment in a particular manner, the Government can not use its executive power to circumvent the requirement of statutory rules. In other words, if a civil post is created, then it would be the abandoned duty of the State to fill up such post according to the requirements, consistent with Articles 14 and 16 of the Constitution. The back-door appointments at the behest of power has always been deprecated. Therefore, in order to make appointment just and fair, conforming to Articles 14 and 16 of the Constitution, opportunity has to be given to eligible persons by inviting applications through public notifications etc. It would be appropriate to quote relevant passage from the aforesaid judgment hereunder :- "The Rules or instructions should be in compliance with the requirements of Articles 14 and 16 of the Constitution. The procedure prescribed, shall be just fair and reasonable. Opportunity shall be given to eligible persons by inviting applications through the public notification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the State. Therefore, it must be held that power of relaxation exercised by the Government is ultra vires the rules and the High Court is right in holding that the Government can not relax the rules of recruitment to be made by the PSC." 18. It is well known that Articles 14 and 16 of the Constitution strike at arbitrariness of State actions and ensure equal and fair treatment. The State action must be fair and free, it must not be guided by any extraneous or irrelevant consideration. In support of such a finding, reference can be made to the case of E.P. Royappa vs. State of Tamil Nadu & anr. A.I.R., 1974 S.C. 555. The State action must be fair and free, it must not be guided by any extraneous or irrelevant consideration. In support of such a finding, reference can be made to the case of E.P. Royappa vs. State of Tamil Nadu & anr. A.I.R., 1974 S.C. 555. It would be appropriate to quote a relevant passage from the aforesaid report hereunder : "Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic arid constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or' irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to malafide exercise of power and that is hit by Articles 14 and 16...." 19. From a bare reference to the aforesaid authority of the Supreme Court, it is thus apparent that the main object of publicity of the vacancy is to provide opportunity to all concern. Only after adopting such a procedure the names of eligible candidates may be brought before the Selection Committee for its consideration. In the case before me, there has been no denial that against all the posts of Assistant Professors in different Medical Colleges of the State, appointments are made after' due advertisement and publishing panels for different subjects. 20. I have already noticed that admittedly there was no publicity' with regard to the post in question nor any information was published even on the Notice Board. Therefore, there is a clear breach of the prescribe9 norms and settled policy of the State Government in filling up such posts. 21. Now I would like to deal with the contention, made on behalf of the respondent-State as also respondent no. 5, that the petitioner being not• qualified for the post has, no legal right to maintain this writ application and challenge such appointment. 21. Now I would like to deal with the contention, made on behalf of the respondent-State as also respondent no. 5, that the petitioner being not• qualified for the post has, no legal right to maintain this writ application and challenge such appointment. The answer is very plain and simple. Because there can not be any dispute if the petitioner is not qualified for such appointment, no writ of mandamus can be issued at his instance to compel the authorities to consider his case for appointment. 22. A reference in this regard can be made to the case of Dr. Umakant Saran vs. State of Bihar & ors., A.I.R. 1973 S.C. 964. The relevant findings in this regard from the aforesaid report is quoted hereunder :- "This Court has pointed out' in Dr. Rai Shivendra Bahadur vs. The Governing Body of the Nalanda College, that in order that mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved party have a legal right under the statute to enforce its performance. It is contended on behalf of the State that apart from the fact that respondents 5 and 6 had been validly appointed in accordance with the practice followed by the Government, Dr. Saran, who was not eligible for consideration for appointment at the time, had no right to question for appointments since he was not aggrieved." 23. Thus, it is obvious if the petitioner is not possessing a degree of superspeciality in the concerned subject, he cannot make a prayer to command the authorities to appoint him against such post. But certainly, on the basis of information, furnished by him through this writ application, it has been established that the post in question was filled up without following the prescribed procedures as also in utter disregard to the' constitutional mandate, enshrined' under Article 16. True it is while holding such a view, I am conscious, about the situation that services of respondent no. 5, might be more useful for the post, which requires a well experienced person, having degree in superspeciality. But it can not be ignored that as per the prescribed norms, such post can only be filled up on due advertisement as also after giving equal opportunity to others, who may be duly qualified for appointment. 5, might be more useful for the post, which requires a well experienced person, having degree in superspeciality. But it can not be ignored that as per the prescribed norms, such post can only be filled up on due advertisement as also after giving equal opportunity to others, who may be duly qualified for appointment. The procedure adopted by the State Government in absorbing/regularising the services of respondent no. 5 against the newly created post can not satisfy the principle of fair play and equal opportunity to others. 24. Before parting with this order it would be proper to notice the views expressed by certain higher authorities of the Department of Health from an abstract of the relevant file, contained in Annexure-5 series in the matter relating to posting of respondent no. 5 against the post in question:- A bare reference to the nothings of the authorities, reveals that they had fairly pointed out that as per prescribed procedure and settled norms, the post of Assistant Professor can not be filled up unless a panel is prepared after proper advertisement. 25. But it is a matter of great surprise inspite of such a justified objection as also without assigning any reason contrary to that the impugned notification was issued. In my view such an arbitrary decision of the executive is not proper rather guided by extraneous or irrelevant consideration and this violates the provisions of Articles 14 and 16 of the Constitution of India. 26. That apart, no statutory instruction or guideline of the State Government has been pointed out that such post can be filled up by transfer of Assistant Professors working against a post of different subject. 27. For the reasons, stated above. I have no option but to hold that the impugned notification to the extent, whereby, respondent no. 5 has been permanently absorbed/posted against the post in question can not sustain and, accordingly, the same is hereby quashed. Respondent no. 2 is therefore, directed to take steps to fill up the post after proper advertisement and preparation of a penal on due process of law. But having regard to the public interest, respondent no. 5 may continue to hold the post in capacity of a deputationist, until a' fresh appointment is made. 28. With the aforesaid direction, the writ application is, thus, disposed of, but there shall be no order as to costs.