P. VISHWANATHA SHETTY, J. ( 1 ) THE petitioner in this petition was an applicant for the post of Lecturer-cum-Assistant Surgeon in the Department of Cardiology at Sri Jayadeva Institute of Cardiology (hereinafter referred to as 'the 1st respondent-Institution' ). In this petition, at the first instance the petitioner had called in question the appointment of respondents 2 and 3 and one Dr. P. Vijaya Kumar. However, since during the pendency of this petition the said Dr. P. Vijaya kumar had tendered his resignation and one Dr. Chandran was appointed to the said post, the said Dr. Chandran has been impleaded as the 4th respondent and his appointment has been called in question. ( 2 ) SRI V. C. Brahmarayappa, learned Counsel appearing for the petitioner, challenged the selection of respondents 2 and 3 in preference to the claim of the petitioner on two grounds. Firstly, he submitted that since the petitioner had acquired the qualification of super speciality in Cardiology and the appointment of Lecturer-cum-Assistant Surgeon was required to be made in the Department of Cardiology, the petitioner who had a better qualification and more. meritorious than respondents 2 and 3 should have been selected and appointed to the said post. Secondly, he submitted that as per the notification issued calling for the application, a copy of which has been produced as Annexure-B, out of the three posts notified for appointment, one post was reserved for Scheduled Castes, one post was reserved for Scheduled Tribe and the remaining one post was made available for the General Merit category; and since there was no candidate belonging to Scheduled Tribe, the petitioner who belongs to Backward Tribe category should have been considered for the post reserved for the Scheduled Tribe, instead of appointing respondents 2 and 3 who belong to General merit category, in view of the Government Order bearing No. DPAR 28 SBC 86, dated 12th December, 1986, a copy of which has been produced as Annexure-C. Elaborating this submission, sri Brahmarayappa submitted that in Annexure-C, it is clearly specified that in case a candidate belonging to Scheduled Tribe is not available, the post reserved to the Scheduled Tribe should be filled-up by recruiting a candidate belonging to Scheduled caste, and if a candidate belonging to Scheduled Caste is not available, then the candidate belonging to Group 'a' i. e. Backward Tribe must be considered for appointment. He further submitted that it was not permissible for the 1st respondent-Institution to select respondents 2 and 3 or any one of them to the post reserved for Scheduled Tribe as against the claim of the petitioner. It is his further contention that the stand taken by the 1st respondent-Institution that the Government order Annexure-C was not applicable to it is totally erroneous in law and since the case of the petitioner was not admittedly considered with reference to the Government Order Annexure-C in so far as the post reserved to Scheduled Tribe candidate is concerned, a direction will have to be issued by this Court to the 1st respondent-Institution to consider the case of the petitioner for appointment as Lecturer-cum-Assistant Surgeon from the date on which respondents 2 and 3 came to be appointed, and if the petitioner is found suitable to be appointed, a further direction is also required to be given to the 1st respondent-Institution to give continuity of service to the petitioner from the said date either by creating a supernumerary post if there is no vacancy or in the event of a vacancy being available, to appoint the petitioner to the existing vacancy. ( 3 ) SRI B. L. Acharya, learned Counsel appearing for the 1st respondent-Institution, submitted that the 1st respondent-Institution is an Autonomous Institution and therefore the Government Order relied upon by the learned counsel for the petitioner does not apply to it. Further, he submitted that the 1st respondent did not take any decision to apply the said Government Order and under those circumstances, since a candidate belonging to Scheduled Tribe was not available, one post reserved to the Scheduled Tribe was filled up by a candidate belonging to General Merit category. He further submitted that the Expert/selection Committee constituted by the 1st respondent-Institution which consisted of specialists in the field and men of high repute, after considering the comparative merit and qualification of the petitioner, respondents 2 and 3 and other applicants found that respondents 2 and 3 are more meritorious than the others in respect of the said two posts i. e. the post reserved for General merit category and the post reserved for Scheduled Tribe category; and on the basis of the recommendation made by the said Expert/selection Committee, respondents 2 and 3 came to be appointed as Lecturers-cum-Assistant Surgeons. According to the learned Counsel, the decision taken by the Expert/selection committee cannot be interfered with by this Court. ( 4 ) SRI H,k. Vasudeva Reddy, learned Counsel appearing for respondents 2 and 3, while reiterating the submissions made by the learned Counsel appearing for the 1st respondent-Institution, strenuously submitted that when the expert/selection Committee has found that respondents 2 and 3 are more suitable than the petitioner and recommended their case for appointment, it is not permissible for this Court to substitute its views to the decision of the Expert/selection committee, in exercise of the jurisdiction of this Court either under Article 226 or Article 227 of the Constitution of India. According to Sri Reddy, the assessment of comparative merit of a candidate must be allowed to reach its finality in the decision taken by the Expert/selection Committee, especially when the expert/selection Committee consisted of specialists in the field and there is no allegation of mala fides and motives imputed to the said Committee. He further submitted that during pendency of this petition, the 2nd respondent came to be appointed as assistant Professor on 28th November, 1990, and thereafter, he was appointed as Professor on 6th January, 1996, and the 3rd respondent was appointed as Assistant Professor on 27th november, 1990, and since then respondents 2 and 3 have been working in the respective posts held by them. According to Sri reddy, even assuming that the case of the petitioner should have been considered for the post reserved to the Scheduled Tribe, on the date of considering the case of respondents 2 and 3, since respondents 2 and 3 have been subsequently selected and appointed for higher posts, their appointment cannot be set aside at this stage, and in the facts and circumstances of the case if it is held that the petitioner is entitled for relief, the only direction that could be given is to direct the 1st respondent-Institution to consider the case of the petitioner for appointment as Lecturer-cum-Assistant Surgeon, if necessary, by creating a supernumerary post, if there is no vacancy as on this date. Sri Reddy would further submit that respondents 2 and 3 were selected to the posts of Professor and Assistant professor, respectively, after their cases were considered on merits by the Expert/selection Committee, and therefore, the question of disturbing either the 2nd or the 3rd respondent for the purpose of accommodating the petitioner in the cadre of lecturer-cum-Assistant Surgeon does not arise for consideration. Sri Brahmarayappa also fairly admits that at this length of time, it is not just and reasonable to set aside the appointment of respondents 2 and 3, having regard to the subsequent events narrated above and the petitioner would be satisfied if a direction is given to consider his case for appointment and to give him the continuity of service. ( 5 ) AFTER carefully considering the rival contentions advanced by tbe learned Counsel, I am of the view that the petitioner is entitled for the grant of relief not on the first ground urged by the learned Counsel for the petitioner, but on the second ground urged by him, ( 6 ) SO far as the first contention of Sri Brahmarayappa is concerned, it is not in dispute that the Expert/selection committee constituted by the 1st respondent-Institution for the selection of candidates for the post of Lecturer-cum-Assistant surgeon consisted of specialists in the field. There is no allegation of bias or favouritism imputed to the said expert/selection Committee. Under these circumstances, as rightly contended by the learned Counsel appearing for the respondents, if the Expert/selection Committee after adjudging the comparative merit and suitability of each of the candidates had found that respondents 2 and 3 were more suitable than the petitioner for appointing them as Lecturers-cum-Assistant surgeons, it is not permissible for me to interfere against the said decision of the Expert/selection Committee and set aside the appointment of respondents 2 and 3, in exercise of the jurisdiction conferred on me either under Article 226 or Article 227 of the Constitution of India. It is not permissible for this court to substitute its views to the decision of the expert/selection Committee, especially when the said expert/selection Committee consists of specialists in the field and there is no allegations of motives or mala fides imputed to it. It is not in dispute that respondents 2 and 3 possessed the requisite qualification prescribed to the post in question. It is not in dispute that respondents 2 and 3 possessed the requisite qualification prescribed to the post in question. Under these circumstances, as stated earlier, it is not open to me to nullify the decision of the Expert/selection Committee solely on the ground that the qualification possessed by the petitioner, as claimed by Sri Brahmarayappa, is more suitable to the post in question than the one possessed by respondents 2 and 3. The expert/selection Committee which consists of specialists in the field was in better position to assess the relative qualification held by each of the candidates and the utility of the said qualification to the post in question. Therefore, I do not find any merit in the first submission of Sri Brahmarayappa. ( 7 ) HOWEVER, I find considerable force in the submission of Sri Brahmarayappa that the 1st respondent-Institution erred in law in not considering the claim of the petitioner in respect of the one post reserved to Scheduled Tribe category. Clause 14 of order Annexure-C provides that the said order is made applicable to several Institutions referred to therein including the institutions which have been getting financial aid from the state Government. Sub-clause (2) of Clause 9 of the Order annexure-C provides that if a candidate belonging to Scheduled tribe is not available for filling up the post reserved to the said category, then the candidate belonging to the Scheduled Caste should be preferred and if the candidate belonging to Scheduled caste is not available, the said post must be filled up by recruiting a candidate belonging to Group 'a' i. e. Backward tribe. It is useful to extract Clauses 9 and 14 of Order annexure-C, which read as hereunder: a reading of Clause 9 (2) of Order Annexure-C makes it abundantly clear that if the candidate belonging to Scheduled tribe is not available, the post reserved to the said community should be filled up by a candidate belonging to Scheduled Case and if the candidate belonging to Scheduled Caste is also not available, then the candidate belonging to Group 'a' should be considered for selection/appointment. Further, Clause 14 of order Annexure-C extracted above also makes it clear that order Annexure-C has been made applicable to all the institutions receiving financial aid from the State Government. Further, Clause 14 of order Annexure-C extracted above also makes it clear that order Annexure-C has been made applicable to all the institutions receiving financial aid from the State Government. It is not in dispute that the 1st respondent-Institution is receiving full financial assistance from the State and it is also an instrumentality of the State. Under these circumstances, the mere fact that the 1st respondent-Institution has not taken any decision to follow the Government Order Annexure-C cannot be a ground to deny the benefit of Order Annexure-C, issued under article 16 (4) of the Constitution of India. Therefore, I have no hesitation to accept the submission of the learned Counsel for the petitioner that on the date of considering the case of the petitioner, respondents 2 and 3 by the 1st respondent- institution, Order Annexure-C was governing the rights of the parties, and therefore, the 1st respondent-Institution was required to consider the case of the petitioner in respect of the one post reserved for Scheduled Tribe, in the absence of a candidate belonging to Scheduled Tribe or Scheduled Caste. Therefore, I am of the opinion that non-consideration of the case of the petitioner, who is a person belonging to Group 'a', seriously affect the right guaranteed to him by order annexure-C, under Articles 14 and 16 of the Constitution of india, and therefore, a direction is required to be issued to the 1st respondent-Institution to consider the case of the petitioner for appointment to the post of Lecturer-cum-Assistant Surgeon. ( 8 ) THEN the only question that would fall for consideration is whether a direction is required to be given to the 1st respondent-Institution to unseat either the 2nd or the 3rd respondent, whoever is less meritorious amongst them, to accommodate the petitioner. The answer to this question should not detain me for long for the reasons more than one. Admittedly, subsequent to his selection as Lecturer-cum-Assistant Surgeon, the 2nd respondent was appointed by way of selection initially to the post of Assistant professor and therefore to the post of Professor. Similarly, the 3rd respondent was selected and appointed to the post of assistant Professor. Thereafter, there cannot be any dispute that subsequent to the appointment of respondents 2 and 3 to the higher posts as stated above, the posts of Lecturer-cum- assistant Surgeon had fallen vacant. Similarly, the 3rd respondent was selected and appointed to the post of assistant Professor. Thereafter, there cannot be any dispute that subsequent to the appointment of respondents 2 and 3 to the higher posts as stated above, the posts of Lecturer-cum- assistant Surgeon had fallen vacant. Under these circumstances, it is not permissible to set aside the appointment of either the 2nd respondent or the 3rd respondent for the purpose of accommodating the petitioner, if he is considered suitable to be appointed as a Lecturer-cum-Assistant Surgeon. Further, it is also highly inequitable at this belated stage to unseat either the 2nd respondent or the 3rd respondent. ( 9 ) FURTHER, it is also relevant to point out that in the course of hearing of this petition, on my suggestion, the learned Counsel appearing for the 1st respondent-Institution after seeking instructions from the 1st respondent submitted that as on this date there is a post of Lecturer which is equivalent to the post of lecturer-cum-Assistant Surgeon available in the 1st respondent- institution. Under these circumstances, I am of the opinion that if it is acceptable to the petitioner, he could be appointed to the post of Lecturer as the said post is equivalent to the post of lecturer-cum-Assistant Surgeon. However, if the petitioner is keen that he should be appointed to the post of lecturer-cum-Assistant Surgeon, then the existing post of lecturer can be redesignated as Lecturer-cum-Assistant surgeon. Since the case of the petitioner was required to be considered for appointment as Lecturer-cum-Assistant Surgeon from the date on which respondents 2 and 3 came to be appointed, it is also in the interest of justice to direct the 1st respondent-Institution to give continuity of service to the petitioner if the 1st respondent-Institution finds the petitioner suitable to be appointed as Lecturer-cum-Assistant Surgeon. However, since the petitioner has not worked all these years in the 1st respondent-Institution, he will not be entitled to claim any backwages. Sri Brahmarayappa also fairly accepts this position. ( 10 ) IN view of the conclusions reached by me as stated above, I make the following: (1) The 1st respondent-Institution is directed to consider the case of the petitioner for appointment as a lecturer/lecturer-cum-Assistant Surgeon, within two months' from the date of receipt of a copy of this order. Sri Brahmarayappa also fairly accepts this position. ( 10 ) IN view of the conclusions reached by me as stated above, I make the following: (1) The 1st respondent-Institution is directed to consider the case of the petitioner for appointment as a lecturer/lecturer-cum-Assistant Surgeon, within two months' from the date of receipt of a copy of this order. (2) If the 1st respondent-Institution decides to appoint the petitioner, the petitioner is entitled for continuity of service from the date on which respondents 2 and 3 came to be appointed, for the purpose of seniority, pension and other retirement benefits. However, it is made clear that the petitioner is not entitled for any backwages. ( 11 ) RULE issued is made absolute and this petition is disposed of in terms stated above. --- *** --- .