Judgment S.J.Mukhopadhaya, J. 1. The State of Bihar and others, the appellants, have challenged the judgment passed by the learned single judge, dated 22.12.95, in C.W.J.C. No. 5969 of 1994. 2. The writ petitioners (respondents herein) preferred writ petition for a declaration that the junior teaching posts of Registrar, Tutor and Assistant Professor cannot be reserved in favour of other backward category (O.B.C.) and challenged the notification dated 11.11.79 to that effect. 3. The main contention of the writ petitioners (respondents) was that the junior teaching posts are promotional post, therefore, the provision of reservation for O.B.C. is, not applicable. On the other hand, the contention of the appellants (herein) was that the appointment to the junior teaching posts is made by direct recruitment, so the provision of reservation for O.B.C. is applicable. Learned single judge held that the junior teaching posts of Registrar/Tutor/Assistant Professors are promotional posts and declared that no reservation can be made in favour of O.B.C. 4. The admitted facts show that a number of posts of doctors were created under the State Government. The posts of doctors (non-teaching) were created in the then Bihar Medical Service as well as in the then Bihar Public Health Service. The teaching posts of doctors were also created in different medical colleges of the State of Bihar. 5. Subsequently, the appellant-State of Bihar constituted the Bihar Health Service by a Notification No. 2A/4/3-102/66-2100 (2) H-dated 2.5.1967. Relevant part of which has been taken into note by the learned single judge and quoted below: I am directed to refer to paragraph 3(A) of the Resolution No. PR-G2-26-65-532F 11 dated 17 July, 1965 and letter No. 671/F 11. dated 30th April 1966 regarding replacement scale of pay issued from the Finance Department and to say that Government have been pleased to combine the Bihar Medical Service and Bihar Public Health Service into single cadre, called the "Bihar Health Service" with effect from 1st April, 1964. This cadre will consist of duty and leave reserve posts on the administrative side and teaching posts calculated on the basis of actual requirements of deputation to the teaching side. The holders of teaching posts will 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. The holders of teaching posts will 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 they cease to be teachers and revert to the Administrative Branch, they will draw pay according to their position in the cadre, that is, they will be either Civil Assistant Surgeon, Selection Grade Officers, Civil Surgeons, Senior Medical Officers or holders of equivalent posts of Deputy Directors, Additional Directors and Directors. If any one junior in the cadre to a person on the teaching side draws pay in the administrative post in a scale higher than drawn by the person on the teaching side, other than as a purely casual or temporary arrangement in exigencies of public service, the latter will be permitted to draw pay he would have drawn but for his deputation to the teaching side. 6. So far as teaching posts of doctors in different medical colleges of the State of Bihar are concerned, after creation of the Bihar Health Service, the Junior teaching posts of Registrar Tutor, Assistant Professor, R.M.O./R.S.O. are filled up only from amongst the members of the Bihar Health Service. A person on appointment to the junior teaching posts is deputed and transferred against such posts. The junior teaching posts aforesaid have separate higher scale of pay than the posts of Bihar Health Service cadre. The persons appointed against junior teaching posts of Assistant Professor are only eligible for promotion to next higher teaching posts like Associate Professor and Professors. Though the persons are placed on deputation against such junior teaching posts but their seniority is retained in the parent Bihar Health Service cadre. The appointees against tenure junior teaching posts like Registrar, R.M.O. and R.S.O. revert back to the parent Bihar Health Service Cadre. Other teachers like Assistant Professor, Associate Professor and Professors, on their request can only be reverted to the parent Bihar Health Service Cadre. 7. Admittedly the junior teaching posts are filled up by advertisement through newspaper from eligible members of the Bihar Health Service Cadre. After selection and preparation of panel persons are appointed and posted on the basis of merit-cum-choice. No separate order of appointment is being issued on such selection but orders of transfer/deputation against such junior teaching posts are issued. 8. Admittedly the junior teaching posts are filled up by advertisement through newspaper from eligible members of the Bihar Health Service Cadre. After selection and preparation of panel persons are appointed and posted on the basis of merit-cum-choice. No separate order of appointment is being issued on such selection but orders of transfer/deputation against such junior teaching posts are issued. 8. Learned single judge has taken into note that the junior teaching posts are of higher grade than the basic grade posts of Bihar Medical Service Cadre. The members of Bihar Health Service are appointed after due advertisement and selection against such higher grade teaching posts having higher rank and status. Taking into note the aforesaid mode of selection learned single judge held that such appointment is not a direct recruitment but are promotions and so the Rules for reservation in favour of "other backward classes" are not applicable. 9. Learned Advocate General gave much stress on the mode of appointment. According to him, as the junior teaching posts are filled up after due advertisement and selection on the basis of merit, and not on seniority, it is an appointment by direct recruitment. Further as such appointments are not made from amongst outsides but from amongst members of the Bihar Health Service, it should be termed as direct recruitment limited amongst the members of the Bihar Health Service. 10. It is not in dispute that the earlier notification of reservation dated 11.11.79 stood superseded by the Reservation Act, namely, "Bihar Reservation of Vacancies in posts and Services (For Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991". If the appointment is made by direct recruitment then in that case certain posts are also to be reserved and are to be filled up from amongst "other backward class". Thus, the main questions to be determined in this case are: (a) Whether appointment against junior teaching posts are made by direct recruitment or by promotion. (b) Whether certain and junior teaching posts can be reserved in favour of "other backward classes". 11. Having heard the parties and having gone through the impugned order while I accept the finding of learned single judge that no reservation can be made in favour of other backward classes for appointment against junior teaching posts aforesaid, but for coming to such conclusion my reasoning are different, as stated hereunder. 12. 11. Having heard the parties and having gone through the impugned order while I accept the finding of learned single judge that no reservation can be made in favour of other backward classes for appointment against junior teaching posts aforesaid, but for coming to such conclusion my reasoning are different, as stated hereunder. 12. The notification dated 2.5.1967 by which Bihar Health Service was created, the following stipulation was made. The holders of teaching posts will be treated to be on deputation to the teaching branch for the time during which they are employed as teacher and will be in the teaching posts on officiating basis. If they cease to be teachers and revert to the Administrative Branch, they will draw pay according to their position in the cadre, that, is they will be other Civil Assistant Surgeon, Selection Grade officers, Civil Surgeons, Senior Medical Officers or holders of equivalent posts of Deputy Directors, Additional Directors and Directors. If any one junior in the cadre to a person on the teaching side draws pay in the administrative post in a scale higher than drawn by the person on the. teaching side, other than as a purely casual or temporary arrangement in exigencies of public service, the latter will be permitted to draw pay he would have drawn but for his deputation to the teaching side. From the aforesaid notification, it is clear that the junior teaching posts are not in the same the general cadre of the Bihar Health Service. 13 The Resolution No. 2597 dated 7.8.78 issued by the State Government shows that the junior teaching posts are filled up after due advertisement from amongst members of Bihar Health Service after preparation of panel by way of posting. Admittedly, no separate instrument for appointment, either by way of direct recruitment or promotion, are issued but mere orders of posting/deputation are issued by the State Government for such appointment. This will be evident from Notification No. 570 dated 30.6.90(Annexure-9 to the writ petition). Therefore, according to me, the present mode of appointment as laid down by the State Government and being followed to fill up the junior teaching posts can safely be termed as an appointment by way of transfer/deputation. 14. Generally in absence of rule/guideline appointments are made by following two modes, namely, (a) by direct recruitment, and (b) by promotion. Therefore, according to me, the present mode of appointment as laid down by the State Government and being followed to fill up the junior teaching posts can safely be termed as an appointment by way of transfer/deputation. 14. Generally in absence of rule/guideline appointments are made by following two modes, namely, (a) by direct recruitment, and (b) by promotion. However, the authority can resort to other modes of appointment like (i) appointment by transfer/deputation, (ii) appointment by regularisation, (iii) appointment by absorbtion etc. 15. The Supreme Court in the case of G.S. Venkata Reddy V/s. State of Andhra Pradesh reported in 1993 (Suppl.) Vol. 3 S.C.C. 425, observed as follows: A person is said to be Recruited Direct to a post, category or class in a service, in case his first appointment thereto is made otherwise than (i) by promotion (ii) by transfer, or (iii) by re-employment. Here in this case, as admittedly the appointments are made by transfer and are not the first appointment to a post, category or class in a service, it cannot be termed as "direct recruitment. So, the submission made by the learned Advocate General cannot be accepted. 16 So far as reservation is concerned, as the appointment to a junior teaching post is not a "direct recruitment", the same cannot be reserved for "other backward class persons" as Sec. 3(d) of the Bihar Reservation Act, 1991 bars such reservation. 17. For the reasons stated above, I find no merit in this appeal. The letters patent is, accordingly, dismissed. S.N.Jha, J. 18 I agree.