ORDER Heard learned counsel for the petitioner and learned counsels for the State, for the IGIMS and for respondent no. 7. 2. The petitioner has come to this Court for quashing the appointment of respondent no. 7, Dr. Uma Shankar Roy to the post of Medical Superintendent in the Indira Gandhi Institute of Medical Sciences (IGIMS) as communicated by letter dated 24.5.2011 and to utilize the services of the petitioner on the post of Medical Superintendent who had been continuing as such without any break having dual charge of Head of Department of Microbiology and Medical Superintendent continuously for the last about 10 years. 3. This is the third round of litigation in the matter. Earlier in the year 2002 an advertisement was made for appointment on the post of Medical Superintendent in the Indira Gandhi Institute of Medical Sciences (IGIMS). The name of the petitioner was recommended by the Selection Committee but no decision was taken by the Board of Directors in the matter on the said recommendation, upon which the petitioner approached this Court by filing CWJC No. 406/2003 which was disposed of by order dated 8.4.2003 by this Court with a direction, with the consent of learned counsel for both the parties, to the Board of Governors of the Institute to open the sealed envelops containing the recommendation for the post of Medical Superintendent, consider the cases of the recommended candidates and take a decision in the matter of appointment on the post in accordance with law. In the said writ petition the petitioner had also made a claim for the post of Dean and similar direction was issued with respect to that also. However, no decision was taken by the Board of Governors on the said recommendation and the petitioner was being, by the orders issued from time to time, allowed to function as the Medical Superintendent until further orders. 4. Again an advertisement No. 07/MS/IGIMS/Estt./2010 was issued in June, 2010 for the post of Medical Superintendent fixing the last date for submission of application as 15.7.2010 and providing upper age limit of 50 years as on 15.7.2010 relaxable for Government servant/SC/ST/BC category candidates as per Bihar Government Rules. Para-1 of the General Instructions in the said advertisement provided that the “post of Medical Superintendent is full time post. Para-1 of the General Instructions in the said advertisement provided that the “post of Medical Superintendent is full time post. In case of non-availability of suitable candidate for the post of Medical Superintendent for regular appointment or on transfer or on deputation, Institute may consider appointment on contract basis of superannuated persons up to the age of 65 years”. 5. The petitioner claims to have been the only candidate who had applied till the last date of application but subsequently by a corrigendum to the advertisement dated 21.7.2010, the last date of submission of application was extended to 16.8.2010. Aggrieved by the issuance of the advertisement the petitioner approached this Court by filing CWJC No. 12125/2010 in which an interim order dated 6.9.2010 was passed directing that if the final appointment has not been made, it shall not be made till further orders of this Court. The said order was modified by order dated 14.12.2010 to the extent that respondents were permitted to go ahead with the process of appointment, complete the formality and then come to this Court for further direction on the issue. Ultimately the writ petition was disposed of by order dated 3.3.2011 taking note of the submissions made on behalf of the respondents, as also mentioned in the counter affidavit filed on behalf of the IGIMS, that the selection process has been almost completed as interviews have been held and recommendation forwarded in a sealed cover for consideration for final decision by the Board of Governors. It was further observed that the final decision of the Board of Governors will be a fresh cause of action and if after the decision the petitioner has any grievance he has remedy before the Court afresh and the Board of Governors were obliged to take a final decision within a reasonable time. Ultimately, on the basis of the recommendation of the Selection Committee placing the respondent no. 7 at Sl. No. 1 and the petitioner at Sl. No. 2 in the merit list, the Board of Governors appointed the respondent no. 7 on the post of Medical Superintendent and by office order dated 24.5.2011 it was stated that Dr. U.S. Roy has joined on 24.5.2011 (AN) hence, the petitioner Dr. S.K.Shahi, HOD of Microbiology-cum-Medical Superintendent (Additional Charge) is hereby relieved from the duties and responsibilities of additional charge of Medical Superintendent with immediate effect. 7 on the post of Medical Superintendent and by office order dated 24.5.2011 it was stated that Dr. U.S. Roy has joined on 24.5.2011 (AN) hence, the petitioner Dr. S.K.Shahi, HOD of Microbiology-cum-Medical Superintendent (Additional Charge) is hereby relieved from the duties and responsibilities of additional charge of Medical Superintendent with immediate effect. Aggrieved by the same the petitioner has come to this Court. 6. The petitioner had, in the year 2010, also filed a contempt application being MJC No. 2078/2010 claiming violation/disobedience of the order dated 8.4.2003 passed in CWJC No. 406/2003. In the said contempt application this Court by its order dated 20.12.2011 took note of the history of the case including filing of CWJC No. 12125/2010 by the petitioner and its disposal by this Court and thereafter filing of the present writ petition and the fact that the appointment process had been completed and observed that it was not inclined to proceed further in the matter and disposed of the contempt application making it clear that it was not expressing any opinion on the merits of the appointment in question. 7. Learned counsel for the petitioner submits that the respondent authorities have acted in a most unfair and fraudulent manner by not taking a final decision in terms of the order dated 8.4.2003 passed by this Court and keeping the case of the petitioner pending for years extending his additional charge of Medical Superintendent from time to time without finally appointing the petitioner on the said post. It is urged by learned counsel that such an unfair action on the part of the respondents is violative of the principles of natural justice. 8. It is further submitted by learned counsel for the petitioner that earlier also when the Board of Governors of IGIMS did not take any action in the matter then the State Government by its letter dated 15.10.2009 addressed to the Director, IGIMS directed that the file pertaining to the appointment of the petitioner on the post of Medical Superintendent was examined by the Principal Secretary, Health Department and thereafter on the basis of approval of the Minister and the Chairman, Board of Governors, took a decision to regularly appoint the petitioner on the post of Medical Superintendent and accordingly a request was made to take further action in terms of the said decision. It is urged by learned counsel for the petitioner that the said direction of the State Government is binding upon the respondent-IGIMS in view of Sections 24 and 25 of the Indira Gandhi Institute of Medical Science Act, 1984 which are in the following terms:- “Section-24, Control by the State Government- The Institute shall carry out such direction, as may be issued to it from time to time by the State Govt., for the efficient administration of this Act. Section-25, Dispute between the Institute and the State Government. “If in the exercise of its power and discharge of its functions under this Act, any dispute arises between the Institute and the State Government, the decision of the State Government in such dispute, shall be final.” 9. It is contended by learned counsel for the petitioner that in view of Section 24 of the Act, the direction of the State Government as contained in its letter dated 15.10.2009 is binding upon the IGIMS and accordingly, they ought to have appointed the petitioner on the post of Medical Superintendent and should be ordered by this Court to do so. It is further submitted that even under Section 25 in case of any dispute between the Institute and the State Government, it is the decision of the State Government which shall be final and thus, it was not open to the Institute to flout the Government decision contained in letter dated 15.10.2009. 11. For the aforesaid reasons, learned counsel for the petitioner assails the resolution No. 88/1318 passed in the meeting of the Board of Governors held on 3.5.2010 in which the Board of Governors held that the majority of members of the Board were of the view that since the recommendation of the Standing Selection Committee is very old and eight years has lapsed since the last decision, it will be in the interest of the Institute to have the best choice for the post of Medical Superintendent by giving opportunity to all such candidates who qualify for this post on the given date and therefore did not approve the recommendation of the Selection Committee dated 21.3.2002 and directed that the post of Medical Superintendent should be re-advertised. 12. 12. It is submitted by learned counsel that it was not open to the Board of Governors to have disapproved the recommendation of the Selection Committee in view of the decision of the Government on the point. 13. Learned counsel further submits that under para-1 of the general instructions to the advertisement of June, 2010 it was clearly provided that the post of Medical Superintendent is full time post and in case of non-availability of suitable candidate for the post of Medical Superintendent for regular appointment or on transfer or on deputation, the Institute may consider appointment on contract basis of superannuated persons up to the age of 65 years. It is urged by learned counsel that respondent no. 7 being a superannuated person could not have been considered for appointment on contract basis till attaining the age of 65 years without a decision being first taken that there was no suitable candidate available for regular appointment or on transfer or on deputation. It is submitted by him that since the petitioner had applied and was considered by the Selection Committee as also by the Board of Governors, hence, unless a decision was taken that the petitioner was not a suitable candidate, there could be no question of appointing the respondent no. 7 treating both the petitioner and respondent no. 7 as standing on par and selecting the person who has been given Sl. No. 1 in the recommendation made by the Selection Committee. It is urged that in the presence of the petitioner there could be no question of consideration of the case of respondent no. 7 and only after the rejection of the case of the petitioner appointment of respondent no. 7 could have taken place and thus, for the said reason the appointment of respondent no. 7 is fit to be quashed and the petitioner ought to be appointed as he has not been found to be an unsuitable candidate and was recommended by the Selection Committee for the said post. 14. Learned counsel for the respondent no. 7, on the other hand, submits that the petitioner cannot derive any benefit out of the first advertisement as it did not attain finality and he was not finally selected for the said post. 14. Learned counsel for the respondent no. 7, on the other hand, submits that the petitioner cannot derive any benefit out of the first advertisement as it did not attain finality and he was not finally selected for the said post. It is contended by him that since there was no final selection by the Institute and the recommendation of the Selection Committee was not approved by the Board of Governors ultimately, the petitioner does not have any right in the matter. 15. It is also submitted that the petitioner never challenged the long delay in the first appointment process by approaching this Court seeking mandamus rather he was quite content to be given the additional charge of the post of Medical Superintendent and continued to enjoy all the benefits without ever questioning the action of the respondents. Thus, it is too late in the day to fall back upon the recommendation made by the Selection Committee in the first process. 16. It is also the contention of learned counsel for respondent no. 7 that by the very fact of participating in the second selection process the petitioner has lost the right to fall back upon the first selection process and challenge the second selection process as he cannot be permitted to approbate and reprobate at the same time. Regarding the issue of extension of the date of filing the application, the contention of learned counsel is that the Institute was well within its powers to have extended the last date for submission of applications unless it can be proved that the extension was only to benefit the respondent no. 7. Moreover, the extension of date was never challenged by the petitioner earlier and he cannot be permitted to challenge the same after the result has gone against him. 17. It is lastly submitted by learned counsel that the petitioner has not been selected by the Institute and it amounts to holding that the petitioner has been considered to be unsuitable and in the said circumstances, in the absence of any other candidate for the said post, appointment of respondent no. 7 on contract basis up to the age of 65 years is well within the terms and conditions of the advertisement. 18. 7 on contract basis up to the age of 65 years is well within the terms and conditions of the advertisement. 18. Learned counsel for the IGIMS, on the other hand, submits that the selection process is unassailable on any ground of having violated the principles of natural justice as it was conducted in accordance with the law and after the said process the Standing Selection Committee awarded 13 marks to the petitioner and 18 marks to the respondent no. 7 and as per the rules it submitted its recommendation in a sealed cover which was placed before the Board of Governors at its meeting held on 14.5.2011. In the recommendation of the Selection Committee it was found that the assessment was made in the scale of 20 and petitioner was given 13 marks and respondent no. 7, Uma Shankar Roy was given 18 marks with the remarks 1st. In the order of merit the respondent no. 7 was at Sl. No. 1 and petitioner was at Sl. No.2. In view of the said recommendation of the Selection Committee the Board of Governors by its resolution No. 89/1365 selected the respondent no. 7 who was appointed by letter dated 24.5.2011 of the IGIMS and he joined on the same day. 19. It is further contended by learned counsel for the IGIMS that the decision of the Board of Governors, which is the appointing authority of Medical Superintendent in terms of Section 7 of the IGIMS Act, 1984 is final, and as a matter of fact, in the case of such appointment the State Government is neither empowered to issue specific direction to the Institute nor any such direction can be given as has been done by letter dated 15.10.2009. It is submitted that the letter dated 15.10.2009 issued by the Deputy Secretary, Health Department and relied upon by the petitioner is contrary to the order of Principal Secretary, Health Department who clearly stated in his notes to the Minister, Health Department on 12.10.2009 that since power of appointment is vested in the Board of Governors of IGIMS, there was no need to issue direction and accordingly, the Health Minister also directed the matter to be placed before the Board of Governors. 20. 20. It is also submitted by learned counsel that the entire selection process has been completed after the stay earlier granted by the High Court was vacated and the respondents were permitted to go ahead in the matter and complete the same and thus the petitioner cannot revert to the past selection process of 2002 and can only claim under the present advertisement as was made clear by this Court also while disposing of the earlier writ petition that any decision in the matter of appointment on the post of Medical Superintendent would be a fresh cause of action. 21. Learned counsel also refers to the fact stated in counter affidavit that as per the report received from the Cabinet (Vigilance) Department through the Health and Medical Education Department, a three-member Committee had made preliminary enquiry into irregularities in purchase made in IGIMS and thereafter the Cabinet Vigilance Department is making enquiry into it and the petitioner is also named in the list of accused and the enquiry is in progress. Learned counsel for the IGIMS states that he has been now informed that the vigilance enquiry has been completed and recommendation has been made to institute FIR against the persons concerned, including the petitioner but the matter is still pending at that stage. 22. Learned counsel also challenges the contention on behalf of the petitioner with respect to para-1 of the general instructions in the advertisement. It is pointed out that in terms of the advertisement the upper age limit was fixed as 50 years as on 15.7.2010 whereas the petitioner is admittedly aged about 56 years as per his affidavit dated 20.6.2011 in the writ petition and thus on 15.7.2010 he was much above the upper age limit. It is further submitted that nothing has been brought on the record to show that any relaxation has been granted to the petitioner and moreover any relaxation was not permissible in terms of the advertisement as it would be only granted to government servant/SC/ST/BC which the petitioner is not. It is thus contended by learned counsel for IGIMS that the petitioner was ineligible of being considered for the said post of Medical Superintendent and the recommendation of the Selection Committee could not be acted upon. It is thus contended by learned counsel for IGIMS that the petitioner was ineligible of being considered for the said post of Medical Superintendent and the recommendation of the Selection Committee could not be acted upon. In this regard, it is submitted by learned counsel that even if it is assumed that the Selection Committee and the Board of Governors considered the case of respondent no. 7 in terms of para-1 of the general instructions without first coming to the conclusion that no suitable candidate was available for regular appointment or on transfer or on deputation, so far as the petitioner is concerned, no mandamus can be issued in his favour in view of the fact that he is ineligible for such appointment in terms of the said advertisement. 23. In his reply, learned counsel for the petitioner submits that although there was no specific order of relaxation but the very fact of non-rejection of the application of the petitioner on the ground of ineligibility and consideration of his application by the Selection Committee and by the Board of Governors goes to show that there was deemed relaxation in his favour and thus he is entitled to be appointed on the said post. 24. I have considered the rival submissions of learned counsels for the parties. At the outset it must be noted that no claim can be made by the petitioner on the basis of recommendation made by the then Selection Committee in his favour in the year 2002 for the reason that the said recommendation was ultimately not approved by the Board of Governors and further the writ petition filed by the petitioner, being CWJC No. 12125/2010, was disposed of by order dated 3.3.2011 holding that the writ petition had lost its meaning and the final decision of Board of Governors would be a fresh cause of action against which the petitioner would have remedy before the Court afresh. The petitioner did not challenge the said order dated 3.3.2011 and allowed it to acquire finality. Thus, the petitioner can only be permitted to challenge the action of the respondents on the basis of what has taken place under the fresh advertisement of 2010 and the selection process thereafter. 25. The petitioner did not challenge the said order dated 3.3.2011 and allowed it to acquire finality. Thus, the petitioner can only be permitted to challenge the action of the respondents on the basis of what has taken place under the fresh advertisement of 2010 and the selection process thereafter. 25. Although the petitioner has raised a point regarding extension of date for filing of the application given in the advertisement from 15.7.2010 to 16.8.2010 and it is alleged that the same was made to ensure that other candidates may contest in the field but the challenge to the advertisement itself which was the subject-matter of the earlier writ petition being CWJC No. 12125/2010, has not been entertained by this Court and thus it must be held that the said issue is not open to the petitioner to challenge in the present case. Even otherwise, a mere extension of the last date of advertisement cannot be considered to be mala fide as it is definitely open to the Institute to have as many candidates as possible for the selection on a post as important as that of the Medical Superintendent, even if it is accepted that till the earlier last date of 15.7.2010 there was no other application except the petitioner. 26. At this stage I must also consider the contention of the petitioner regarding the applicability of the 1984 Act. Under Section 24, the Institute is mandated to carry out the direction as may be issued from time to time by the State Government for the efficient administration of the Act. It is evident from the said Section that it is not open to the State to give any or every direction as it may wish to the Institute. It is only direction of a general nature which may be issued with the sole intention to ensure that the Act is efficiently administered. Since there is specific provision in the Act giving power of appointment under Section 12 to the Board of Governors with respect to the post of the nature of Medical Superintendent and the like, it is evident that in such matters it is not open to the State Government to issue specific order for appointment of one or the other candidate. The discretion has been granted by the Statute to the Board of Governors to have final say in the matter and any decision of the Board of Governors can only be challenged in terms of the provisions of the Act and the State Government can have no any say at all in the matter under Section 24 of the said Act. 27. Similarly, the contention on behalf of the petitioner regarding applicability of Section 25 of the Act is only to be noticed to be rejected. The said provision relates to any dispute between the Institute and the State Government in relation to exercise of powers and discharge of functions by the Institute under the Act and in case of such dispute, it is the decision of the State Government which shall be final. It is evident that even if there be a dispute with regard to appointment of any specific person on a particular post, the same cannot be considered as a dispute between the Institute and the State Government in terms of Section 25 of the Act as there is absolutely clear provision in the Act with regard to the power of appointment in the Institute on a post like that of Medical Superintendent. Moreover in the present matter there is nothing on the record to show that at any time there was any dispute between the Institute and the State Government in the matter. Even the letter dated 15.10.2009 which has been issued by a Deputy Secretary of the Health Department does not appear to be in accordance with the file notings in the matter. As a matter of fact, from the file notings as pointed out by learned counsel for the Institute, it is evident that the Principal Secretary has clearly mentioned the fact that the power of appointment of Medical Superintendent is vested in the Board of Governors and the State Government does not have any authority to issue any direction in the matter. Thus, the letter dated 15.10.2009 cannot be treated as a direction to the Institute. Moreover it is not couched in terms of a direction rather it is in terms of information that decision was taken at the level of the Principal Secretary and the Minister-cum-Chairman, Board of Governors, and merely makes a request to take further steps in terms of the decision taken at that level. Moreover it is not couched in terms of a direction rather it is in terms of information that decision was taken at the level of the Principal Secretary and the Minister-cum-Chairman, Board of Governors, and merely makes a request to take further steps in terms of the decision taken at that level. In any view of the matter, as I have held earlier, there cannot be any such specific direction in the matter of appointment of a particular person by the State Government to the Board of Governors of the IGIMS and thus no benefit can be derived by the petitioner on the basis of the letter dated 15.10.2009 issued by the Deputy Secretary, Health Department. 28. The crucial issue, however, in the present matter to be first considered is the advertisement of June, 2010 and as to whether the respondent no. 7 could have been appointed in terms of the said advertisement at all in view of para-1 of the General Instruction. The said para-1 of the General Instruction first of all clarifies that the post of Medical Superintendent is a full time post. It thereafter further provides that the appointment on contract basis of a superannuated person aged upto 65 years will be considered in case of non-availability of suitable candidate for the post of Medical Superintendent for regular appointment or on transfer or on deputation. The upper age limit has also been fixed in the advertisement as 50 years as on 15.7.2010. It is evident from the terms and conditions of the advertisement that the respondent no. 7 was not eligible for applying against the same. Only in the eventuality of the selection process under the advertisement turning out to be futile and no suitable candidate being available for appointment on the post of Medical Superintendent, could the Institute have considered the alternative and taken steps for appointment on contract of a superannuated person. There is nothing in the advertisement to show that a superannuated person was eligible to apply for the said post rather the age fixed was 50 years which clearly debars any person who was above 50 years of age as on 15.7.2010 and would certainly debar a superannuated person. 29. In that view of the matter, it was not open to the Selection Committee or the Board of Governors to have considered the case of respondent no. 29. In that view of the matter, it was not open to the Selection Committee or the Board of Governors to have considered the case of respondent no. 7 in terms of the 2010 advertisement. Thus the respondent no. 7 could not have found any place in the merit list recommended by the Selection Committee nor could have been considered by the Board of Governors and his selection, thus, is wholly illegal and contrary to the advertisement. It is therefore, fit to be quashed and is accordingly quashed. 30. Similarly, this Court must note the contention of learned counsel for the petitioner regarding violation of the principles of natural justice. This Court does not find from the materials on the record that there has been any such violation so far as the present appointment is concerned. The petitioner was duly considered in the process of appointment both by the Selection Committee and by the Board of Governors. 31. The question then arises as to whether in view of the conditions laid down in the advertisement the petitioner’s case could have been considered for appointment and on quashing of the appointment of respondent no. 7 whether mandamus can be issued to appoint the petitioner on the said post in view of the recommendation made by the Selection Committee. 32. Again the terms of the advertisement have to be looked into for the said purpose and in his case it is found that he was much beyond the age of 50 years as on 15.7.2010 and thus not eligible to apply. The advertisement in terms provides relaxation only for government servants/SC/ST/BC and as the petitioner admittedly does not belong to any of these four categories, no relaxation was ever granted to the petitioner and in such matters there cannot be any deemed relaxation. As the consideration of the case of respondent no. 7 by the Selection Committee and the Board of Governors was contrary to law so also the application of the petitioner being contrary to the advertisement ought to have been rejected at the outset and thus any recommendation made in his favour by the Selection Committee could be of no avail. In the said circumstances, there can be no question of issuing any direction in his favour for appointment on the said post. In the said circumstances, there can be no question of issuing any direction in his favour for appointment on the said post. This Court cannot accept any such submission of learned counsel for the petitioner only on account of the fact that his case was considered by the Selection Committee and the Board of Governors and not rejected at the outset on the ground of eligibility, relaxation must be deemed; as pointed out there was neither a specific relaxation nor such relaxation was permissible in terms of the advertisement. Thus, there can be no deemed relaxation. 33. Thus, in the light of the aforesaid discussions, the writ application is partly allowed to the extent that the appointment of the respondent no. 7 by order dated 24.5.2011 stands quashed. 34. However, in the facts and circumstances of the case, there shall be no order as to costs.