Full Judgment Text
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PETITIONER:
DR. J.N. BANAVALIKAR
Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF DELHI AND ANR.
DATE OF JUDGMENT21/09/1995
BENCH:
RAY, G.N. (J)
BENCH:
RAY, G.N. (J)
MAJMUDAR S.B. (J)
CITATION:
1996 AIR 326 1995 SCC Supl. (4) 89
JT 1995 (7) 105 1995 SCALE (5)509
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
G.N. RAY. J.
Leave granted.
Heard learned counsel for the parties.
This appeal is directed against order dated March 21,
1995 passed by the Division Bench of the Delhi High Court in
Writ Petition No. 3995 of 1994. The appellant. Dr.
Banavalikar is a doctor with specialisation in tuberculosis
and chest diseases. The appellant joined the medical service
under the Municipal Corporation of Delhi on 28.4.1980. The
appellant was posted as Superintendent-cum-Senior Consultant
in Tuberculosis in Rajan Babu T.B. Hospital. Delhi
(hereinafter referred to as RBTB Hospital) on 31st March,
1989 on retirement of Dr. R.P. Bagchi from Municipal
Service. Dr. Banavalikar at that time was holding the post
of specialist Grade I (TB and Chest) in the said RBTB
Hospital. In the letter posting the appellant as Medical
Superintendent, it was specifically mentioned that he would
get his own pay scale while holding the charge of Medical
Superintendent. The appellant continued as Medical
Superintendent of the said RBTB Hospital for about five and
half years. The appellant was relieved from the charge of
Medical Superintendent of RBTB Hospital. The appellant was
intimated that he would continue to work as Senior Chest
Specialist in the said hospital as before. The respondent
No.2 Dr. Sudhakar Patnaik who was working as Medical
Superintendent in I.D. Hospital was given the charge of
Medical Suprintendent in RBTB Hospital. It may also be
indicated here the appellant was given ad hoc promotion to
the post of Supertime Grade I (clinical) in the pay scale of
Rs. 5900-6700 with effect from 1.6.1994 initially for a
period of one year or till such time the post would be
filled up on regular basis or till further orders whichever
would be earlier. Such ad hoc promotion was given to the
appellant while he was holding the dual charge of Medical
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Superintendent and Specialist Grade I (TB and Chest) in the
said RBTB Hospital.
The appellant challenged the order of his removal from
the post of Medical Superintendent of RBTB Hospital by
filing a writ petition under Article 226 of the Constitution
of India before the Delhi High Court inter alia contending
that the post of Medical Superintendent of RBTB Hospital had
always been held by the Senior specialist in Tuberculosis
and chest diseases and the appellant being the senior most
specialist in Tuberculosis and chest diseases of the said
hospital, was given the charge of Medical Superintendent
with effect from March 31, 1989 on retirement of Dr. Bagchi.
He had held the post of Medical Superintendent of RBTB till
the impugned order of his removal from the post of Medical
Superintendent and appointment of Dr. Patnaik to the said
post was made. The appellant contended that in a specialist
Hospital like RBTB Hospital, no one should be appointed as
Medical Superintendent of the said Hospital who did not
possess the specialisation in Tuberculosis and Chest
diseases. The appellant contended that he being senior most
chest specialist in the said hospital had been appointed to
the post of Medical Superintendent of RBTB Hospital and
there was no valid reason for his removal from the said post
and appointing Dr. Patnaik who had specialisation in
Pathology and who at the relevant time was holding the post
of Medical Superintendent in the I.D. Hospital. The
appellant also contended that the impugned order had
resulted in his demotion without any basis. The writ
petition, however, on contest, was dismissed by the Division
Bench of the Delhi High Court inter alia on the finding that
Dr. Patnaik was senior to the appellant in the cadre of
specialist Grade I and senior most doctor used to be given
the charge of Medical Superintendent and the post of Medical
Superintendent had no separate scale of pay. It was also
held by the High Court that the appellant had no legal right
to continue as Medical Superintendent and if a person senior
to him was appointed as Medical Superintendent, the
appellant had no occasion to feel aggrieved.
At the hearing of this appeal. Dr. Dhaon the learned
Senior counsel appearing for the appellant has contended
that the post of Medical Superintendent in a hospital is a
distinct post. The Medical Superintendent is in overall
charge of the hospital and all the doctors including
specialists in different specialities are under his
administrative control in the matter of administrative
decisions. Even if the post of Medical Superintendent in the
hospital under the administration of Delhi Municipal
Corporation has no separate scale out the incumbent of the
said post is just entitled to his own scale of pay as a
specialist with only a nominal special allowance, the
Medical Superintendent enjoys an unique position in the
administrative set up of the hospital and every one
understands that the Medical Superintendent of the Hospital
holds a position superior to all other doctors. The status
and dignity attached to the post of Medical Superintendent
and overall administrative control of the hospital exercised
by the Medical Superintendent always give him a position
which is superior and is held by common man superior to
other doctors. Such superiority of the post emanates from
the status, dignity and overall administrative control and
the same is not referable to the scale of pay enjoyed by the
Medical Superintendent. In this connection, Dr. Dhaon has
referred to the decision of this Court in E.P. Rovappa
versus State of Tamil Nadu (1974 (4) SCC 3). In the said
decision, this court has indicated that the purpose of
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declaration of equivalence of a non cadre post with a cadre
post for the Indian Administrative Service is to ensure that
public services are, in the discharge of their duties, not
exposed to the demoralising and depraving effect of personal
or political nepotism or victimisation or the vagaries of
the political machine. The government must apply its mind to
the nature and responsibilities of the functions and duties
attached to the non cadre post and determine the
equivalence. It has also been held that equal pay will by
itself not be decisive of the equation of status and
responsibility of the post.
Dr. Dhaon has referred to another decision of this
Court in Vice Chancellor. L.N. Mithila University versus
Dayanand Jha (1986 (3) SCC 7). While considering the power
of the Vice Chancellor to transfer any teacher occupying a
post in any department or college maintained by the
University to any equivalent post in another department or
college maintained by it, it has been indicated in the said
judgment that in order to be equivalent, the posts in
question must broadly bear the same characteristics and
class. The true criterion for equivalence is the status and
the nature of responsibility of the duties attached to the
posts. The mere circumstance that the two posts are carried
on the same scale of pay is not enough. Dr. Dhaon has
submitted that RBTB Hospital is not a general hospital but a
socialised hospital for the treatment of tuberculosis and
chest diseases. For a long time in the past, the Medical
Superintendent of the RBTB Hospital was invariably a doctor
having specialisation in chest and tuberculosis diseases. As
a matter of fact, the appellant. Dr. Banavalikar succeeded
Dr. Bagchi as Medical Superintendent on his attaining the
age of superannuation. The said Dr. Bagchi was also a senior
specialist in tuberculosis and chest diseases. The Medical
Superintendent controls the administrative set up of the
entire hospital. In a specialised hospital like RBTB
hospital, a person with specialised knowledge in the
treatment of the patients suffering from tuberculosis and
chest diseases who would be admitted in the said specialised
hospital, is best suited for the post of Medical
Superintendent, so that he would better appreciate the
requirement of various departments of the hospital and would
be able to coordinate with various departments more
effectively and by overall supervision and control of the
administration, may tone up the administration to its
desired level. It is because of the felt need of a
specialist in tuberculosis and chest diseases to man the
sensitive post of Medical Superintendent that all along a
specialist in tuberculosis and chest diseases had been made
Medical Superintendent of the Hospital.
Dr. Dhaon has submitted that the appellant is not
inefficient or incompetent to hold the post of Medical
Superintendent. As a matter of fact, he had held the said
post for about five years and a half. He has also earned
promotion to supertime Selection Grade I during the later
part of his tenure as Medical Superintendent. Dr. Patnaik is
a pathologist and he had been holding the post of Medical
Superintendent in I.D. Hospital. He has submitted that it is
apparent that the concerned authorities desired to show
favour to a person who is admittedly junior to the appellant
by making him Medical Superintendent of I.D. Hospital and to
accommodate such junior person. Dr. Patnaik had to be
shifted from the post of Medical Superintendent of that
Hospital to RBTB Hospital and by that process to relieve the
appellant from the duties of Medical Superintendent.
Dr. Dhaon has submitted that the High Court has
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highlighted the fact that the post of Medical Superintendent
has no separate scale and the appellant has not suffered any
change in his scale. Dr. Dhaon has submitted that
equivalence of scale in two posts is not at all a decisive
factor to determine the equivalence in status and
responsibility of the posts in question as indicated by this
court in the decisions of Rovappa (Supra) and Vice
Chancellor of L.N. Mithila University (Supra). Dr. Dhaon has
submitted that it does not require any imagination to hold
that the post of the Medical Superintendent in the hospital
is most prestigious and unique in status and responsibility.
That apart, some special privileges like special allowance
and entitlement to residential quarter are also available to
the incumbent of the post of Medical Superintendent. The
appellant has undoubtedly lost not only the special status
of Medical Superintendent but also the other perks, which
are special to the said post.
Dr. Dhaon has submitted that in the facts of the case,
there was no compelling administrative exigency to shift out
the appellant from the said post and to bring Dr. Patnaik a
pathologist already holding the position of Medical
Superintendent in another hospital. Dr. Dhaon has submitted
that administrative decision will not only conform to the
authority and power to take decision but should also conform
to fairness in action. Dr. Dhaon has submitted that the High
Court has unfortunately failed to appreciate the lack of
fairness and reasonableness in the impugned action of
removal of the appellant and being obsessed with the view
that the appellant had no inherent right to continue in the
said post of Medical Superintendent, has dismissed the writ
petition.
Dr. Dhaon has submitted that the appellant is also a
very senior specialist in the Health Department of Delhi
Municipal Corporation. He has also a legitimate aspiration
to get proper recognition from the concerned authorities in
view of his long and meritorious service as a specialist.
The impugned order can not but hurt his sentiments and
feelings. It is quite evident that the status so long being
enjoyed by him as Medical Superintendent has been lowered.
Even if the authorities are competent to pass the impugned
order the court should be satisfied that it was necessary
because of a genuine administrative exigency to pass the
impugned order. Dr. Dhaon has submitted that the respondent
has failed to place materials to show the existence of a
genuine administrative exigency to pass the impugned order.
He, therefore submits that this appeal should be allowed and
the impugned order should be set aside. According to him
such order will not create any prejudice to Dr. Patnaik
because by virtue of his seniority, he would hold the post
of Medical Superintendent in another hospital.
Mrs. Shyamala Pappu. learned senior counsel appearing
for the Municipal Corporation of Delhi has disputed the
contentions of Dr. Dhaon. She has submitted that the
appellant had not been demoted or reduced in rank. The post
of Medical Superintendent is not a promotional post. The
appellant was therefore never promoted to the said post of
Medical Superintendent. The function of Medical
Superintendent is purely administrative in nature and the
senior most doctor automatically becomes the Medical
Superintendent of the concerned hospital and performs the
administrative duties attached to that post in addition to
regular duties of the speciality to which such doctor is
attached. The senior most doctor. Who is asked to performs
the duties of medical superintendent, continues to get his
own pay scale as specialist. Such doctor however gets an
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administrative allowance of Rs. 200/- per month for
discharging the additional administrative duties of Medical
Superintendent. Mrs. Pappu has submitted that there is only
one integrated seniority list of specialists Grade I
regardless of the fact whether the said specialist is a
Medical Superintendent at any point of time. Mrs. Pappu has
submitted that the appellant being senior most doctor in
RBTB Hospital. When Dr. Bagchi had retired, was posted as
Medical Superintendent of RBTB Hospital in his own pay scale
which he was drawing as specialist Grade I. The appellant by
virtue of his seniority was then not entitled to supertime
Scale of specialist Grade I and some time in 1994 he was
given such supertime scale on ad hoc basis.
Mrs. Pappu has submitted that the aforesaid fact
clearly indicates that the post of Medical Superintendent
has never been treated as a superior post in the integrated
cadre of specialists Grade I. The appellant being senior
most doctor in the hospital was holding the charge of
Medical Superintendent besides performing his normal duties
as specialist Grade I. Even though he was given the
assignment of Medical Superintendent, his position in the
integrated seniority list was maintained and he was not
given the supertime scale in view of his alleged promotion
to a superior post. It was only in 1994 when according to
his seniority position. He became entitled to supertime
scale, it was given to him on ad hoc basis.
Mrs. Pappu has submitted that a specialist is expected
to treat the patients in a better manner by virtue of his
expertise and specialised knowledge. The appellant being
senior most specialist Grade I in the speciality of
tuberculosis and chest diseases, is still holding the post
of Head of the department which he had been holding even
when Dr. Patnaik has been made Medical Superintendent of the
Hospital. Similarly Dr. Patnaik being a specialist in
Pathology has been discharging his duties as Patholgist
despite the assignment of the duties of Medical
Superintendent of the hospital.
Mrs. Pappu has submitted that although an allegation of
malafide action by way showing favour to junior doctor by
making him Medical Superintendent in I.D. Hospital and
consequential shifting of Dr. Patnaik as Medical
Superintendent of RBTB Hospital has been made, neither the
person responsible for the alleged malafide action in
showing favour to a junior doctor nor the said junior doctor
was impleaded in the writ petition before the High Court or
in the special leave petition before this court. No
particular of such malafide action has also been indicated
by the appellant. Hence, the contention about malice in fact
to show favour to another doctor cannot be permitted to be
raised.
Mrs. Pappu has also submitted that in the instant case,
there was also no malice in law. There had not been any
arbitrary and unreasonable action in bringing Dr. Patnaik as
Medical Superintendent of RBTB Hospital. The administration
of Delhi Municipal Corporation is required to look to the
interest of all the hospitals and clinics under its control
and interests of all the doctors under its are also to be
looked into. Since the post of Medical Superintendent is not
a promotional post and to a senior most specialist in a
hospital the assignment of additional duties of Medical
services as a routine measure or nominal monthly allowance
over and above his regular pay is be to given, on overall
consideration of administration of different hospitals Dr.
Patnaik was posted in the RBTB Hospital and he being
admittedly senior to the appellant was given the charge of
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Medical Superintendent. Mrs. Pappu has submitted that the
appellant is not permitted to dictate the policy decision of
posting of doctors in different hospitals and clinics under
the Municipal Corporation of Delhi. Mrs. Pappu has submitted
that on previous occasions the specialists in chest diseases
happened to be the senior most specialist in RBTB Hospital
and as such they had been made Medical Superintendent. As a
matter of fact the appellant being senior most specialist in
the hospital at the relevant time when Dr. Bagchi had
retired, was given the charge of Medical Superintendent even
though in the integrated seniority list of specialist Grade
I, he was junior to many. Mrs. Pappu has submitted that the
perception of Dr. Banavalikar that only a specialist in
chest diseases would be made Medical Superintendent in RBTB
Hospital is not shared by the concerned authorities and
there is also no basis for such contention. She has
submitted that the appellant being Head of his department is
quite free to guide and control the treatment of the
patients and in the matter of treatment, the decision of the
specialist and Head of the department prevails and there is
no question of interference by the Medical Superintendent.
Mrs. Pappu has submitted that as the post of Medical
Superintendent is not a promotional post, the assignment of
duties of Medical Superintendent to the appellant when he
was senior most specialist Grade I in the said hospital was
made as a routine measure. Such assignment however has not
conferred any vested right on the appellant to continue as a
Medical Superintendent. The High Court has, therefore,
rightly rejected the writ petition by holding that the
appellant had no vested right to continue as Medical
Superintendent. Mrs. Pappu has submitted that appellant can
not challenge the policy of posting of different doctors in
various hospitals and clinics under the control of the
Municipal Corporation. In any event, in the instant case any
allegation of malice in fact cannot be raised for the
reasons already indicated. There is no material excepting
vague and bald assertions as to unreasonable and unjust
decision in bringing Dr. Patnaik as Medical Superintendent
in RBTB Hospital. Such contention being absolutely without
any basis and having been made by the appellant only in an
attempt to continue as Medical Superintendent of RBTB
Hospital, the High Court has not accepted such contention
and in the facts of the case, the same should not be
countenanced by this Court. She has therefore, submitted
that any interference with the impugned order of the High
Court is not warranted. The appeal therefore, should be
dismissed.
After giving our anxious consideration to the facts and
circumstances of the case, the materials on record and the
respective submission of the learned counsel for the
parties, it appears to us that there is no specific cadre
post as Medical Superintendent of the hospital under the
administration of Delhi Municipal Corporation. It is the
positive case of the respondent-corporation that senior most
specialist Grade I in a hospital is given the additional
charge of Medical Superintendent of the Hospital. Such
doctor in specialist Grade I performs his regular duties as
specialist Grade I and also performs additional
administrative duties as Medical Superintendent. Since post
of Medical Superintendent is neither a separate cadre post
nor the same is a promotional post, the concerned doctor
remains in his own scale of pay as Grade I but for
discharging additional duties as Medical Superintendent, he
gets a special monthly allowance of Rs.200/-. The integrated
seniority list in the cadre of specialist Grade I remains
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unaffected by the assignment of the responsibilities and
duties of Medical Superintendent on the Specialist Grade I.
A senior most Specialist Grade I in a hospital even when
made Medical Superintendent of that hospital carries his own
scale of pay and his seniority position as Specialist Grade
I. Precisely for the said reasons, the appellant
Banavalikar, by virtue of his being seniormost specialist
Grade I or RBTB Hospital when Dr. Bagchi, the then Medical
Superintendent of the said hospital had retired, was made
Medical Superintendent of the said hospital in 1989 although
in the integrated seniority list of specialist Grade I he
happened to be junior to many including the respondent No.2
Dr. Patnaik. In the letter appointing him as Medical
Superintendent of RBTB Hospital, it was specifically
mentioned that he would continue in his own scale of the
specialists. It is a fact that until appointment of Dr.
Patnaik as Medical Superintendent of RBTB Hospital in 1994,
the appellant and the other predecessors in office of the
Medical Superintendent of RBTB Hospital were specialists in
tuberculosis and chest diseases. But the fact remains that
all the said specialists in tuberculosis and chest diseases
holding the post of Medical Superintendent of RBTB Hospital
happened to be the seniormost doctors in the said Hospital.
The appellant has contended that in RBTB Hospital which is
not a general Hospital but a special hospital meant for
treating patients suffering from tuberculosis and chest
diseases, the concerned authorities consciously and
intentionally appointed a specialists in tuberculosis and
chest diseases as Medical Superintendent of the said
hospital because such specialist is best suited for the post
of Medical Superintendent in the said hospital. Such
contention of the appellant has been seriously disputed by
the respondents and according to the Municipal Corporation
of Delhi, the function of the Medical Superintendent is
purely administrative in nature and as such it is immaterial
if the Medical Superintendent of RBTB Hospital does not
possess any specialisation in tuberculosis and chest
diseases. The contention of the respondent-corporation is
that factum that the appellant and his predecessors in
office of Medical Superintendent of RBTB Hospital were
specialists in tuberculosis and chest diseases, was just a
coincidence. The appellant has failed to produce any
material to show that there had been any policy decision to
select only a specialist in tuberculosis and chest diseases
as Medical Superintendent of RBTB Hospital. The perception
of the appellant and that of respondent-Corporation as to
impelling necessity to select a specialist in tuberculosis
and chest diseases as Medical Superintendent of RBTB
Hospital are entirely different and in the absence of any
rule or policy decision of the concerned authorities, the
appellant can not insist on appointment of a specialist in
chest diseases as Medical Superintendent of RBTB Hospital by
way of implementation of a policy. In the absence of any
rule or administrative policy decision, selection of Medical
Superintendent of the hospitals under the Corporation
remains a prerogative of the Corporation. We may also
indicate that efficiency of a doctor in discharging the
function of the Medical Superintendent will depend more on
his administrative capability than on his skill and
specialisation in a particular stream of medical science.
The appellant therefore, cannot be heard to contend
that only a specialist in tuberculosis and heart diseases is
to be made Medical Superintendent of RBTB Hospital and any
departure from such appointment is per se unjust improper
and arbitrary thereby warranting interference by this Court.
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The High Court in our view, is justified in holding that the
appellant had no vested right to continue as Medical
Superintendent of the said Hospital simply because he was
given the assignment of Medical Superintendent and allowed
to hold the said office of Medical Superintendent for a long
time. We may however, indicate here that the post of Medical
Superintendent in a hospital is unique in status, dignity
and responsibility more so when the incumbert not only
discharges his functions as a specialist but also performs
administrative control of the entire hospital. But as in our
view, the appellant cannot claim as a matter of right to
hold the office of Medical Superintendent which is not a
promotional post or a post in a special cadre and as a
specialist admittedly senior to the appellant in the
integrated cadre of specialist Grade I has been given the
assignment of Medical Superintendent of RBTB Hospital
without affecting his position as the Head of the Department
in his speciality, the appellant cannot challenge the
appointment of Dr. Patnaik as Medical Superintendent in RBTB
Hospital and consequential removal of the appellant as
Medical Superintendent by contending that such appointment
is per se illegal, improper, unjust and arbitrary.
Dr. Dhaon has however contended that even if the
administration was competent to appoint Dr. Patnaik as
Medical Superintendent by removing the appellant from the
said post, the action of the respondent-Corporation must be
consistent with reasonableness and fair play and informed by
exigency of administration. Merely because the Corporation
has authority to appoint Dr. Patnaik and remove the
appellant, it will not be permitted to do so on its ipse
dixit unconnected with any public purpose or genuine
administrative exigency warranting such cause of action.
No exception can be taken to such contention or Dr.
Dhaon as an abstract proposition of constitutional safeguard
against arbitrary action on the part of Government and
public bodies. There is no manner of doubt that
administrative decision of government and public bodies will
not only be consistent with the competence to take decision
cut such decision should also conform to fairness in action.
Such fairness must be demonstrable with full transparency if
a challenge of such action on the vice of arbitrariness or
on the ground of mala fide is made. If the administration of
a public body or a government takes a decision which can be
demonstrated as lacking in reasonableness and fairplay or
tainted with mala fide or arbitrariness, such administrative
action even if made by a competent authority, offends the
pervasive protection under Article 14 of the Constitution of
India against mala fide and arbitrariness in the
governmental action and action of the public bodies, in our
view, the appellant would be entitled to ask for quashing
the impugned action of his removal from the post of Medical
Superintendent if it can be demonstrated to the satisfaction
of the court that such action had been taken without any
reasonable basis and not being informed by administrative
exigency out merely on the caprice and ipse dixit of the
concerned authority or being actuated by malafide intention.
In that event, the consideration of the right of the
appellant to continue in the post of Medical Superintendent
will not be germane because having been lawfully appointed
by the competent authority, the appellant cannot be removed
by any illegal and improper action offending Article 14 of
the Constitution. To be more precise, any action contrary to
protection anshrined under Article 14 of the Constitution is
perse void and not to be countenanced as existing.
In the facts and circumstances of this appeal, it is
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not possible to hold that the impugned action in removing
the appellant and appointing Dr. Patnaik is unfair or unjust
or irrational or arbitrary or tainted with any malafide
intention. The contention of the appellant that in order to
accommodate a junior doctor as Medical Superintendent in
I.D. Hospital, Dr. Patnaik had been moved out from the said
hospital to replace the appellant as Medical Superintendent
of RBTB hospital, is not only vague but lacks in particulars
forming the foundation of such contention. Further, in the
absence of impleadment of the junior doctor who is alleged
to have been favoured by the course of action leading to
removal of the appellant and the person who had allegedly
passed malafide order in order to favour such junior doctor,
any contention of malafide action in fact i.e. malice in
fact should not countenanced by the Court. This appeal
therefore, fails and is dismissed without any order as to
costs.
Before we part, we may, however, indicate that the
appellant having rendered long and useful service as a
specialist Grade I and having been given supertime scale in
the cadre of specialist Grade I in recognition of his
meritorious service, cannot be blamed for having legitimate
aspiration to hold the position of status and dignity,
unique in the set up of a hospital, as Medical
Superintendent. It is reasonably expected that the concerned
authority will be alive to such legitimate aspiration of the
appellant and will consider his case of appointment as
Medical Superintendent whenever an occasion for such
consideration would arise, dispassionately and without being
influenced by the result of this appeal.