dissenting.
This case has taken some strange twists, turns, contortions and convolutions. I feel that explanation of some of these meanderings is in order.
Cantrell is an employee of the State Forestry Commission. The State of Georgia, through certain of its agencies, is seeking to force his involuntary retirement on the ground that he is not able properly to perform the duties of a forest ranger. But Cantrell does not wish to become a charge or ward of the state, as a pensioner, and stoutly maintains that he is able to render proper and acceptable service as a forest ranger, and thereby earn his keep.
The lower court upheld the state’s contentions that Cantrell should be made to involuntarily retire, and the case was appealed to this court and was assigned to the Third Division. After argument, the Third Division, unanimously agreed to reverse the lower court.
The state then filed its motion for rehearing which Presiding Judge Deen and Judge Evans voted to deny, but in the last week of the term Judge Stolz voted to grant. It was too late then to try to reach agreement among the three judges of the Third Division, and our original judgment had to be vacated in order to preserve jurisdiction and legally carry the case over until the next term of court. Cantrell used certiorari to bring to the superior court the question of review of the adverse decision by the state agency. Now, the Attorney General, and certain members of this court, are saying that certiorari was not an available remedy for bringing the case to the superior court — and in effect this would mean that he had no remedy and that the adverse decision by the state agency was final, and could never be reviewed.
It is difficult to conceive of a more gross injustice *457perpetrated by the State of Georgia upon one of its citizens than is being attempted in this case. This same case, with the same plaintiff, and the same defendant, and the same issue, was decided prior hereto in the case of Cantrell v. State of Ga., 129 Ga. App. 465 (200 SE2d 163), and affirmed in State of Ga. v. Cantrell, 231 Ga. 704 (203 SE2d 493), and there the law of this case was established, in the following language to wit: "Plaintiff could have appealed from the State Retirement Board’s adverse ruling by certiorari to the superior court . . .” See page 467 (2), Cantrell v. State, 129 Ga. App. 465, supra. (Emphasis supplied.)
We recognize that a full-bench (and only a full-bench) of the Supreme Court can overrule the decision in State v. Cantrell, 231 Ga. 704, supra, which would in effect overrule Cantrell v. State, 129 Ga. App. 465, supra. But there is no authority on earth that can repeal or undo the "law of the case” as established by the Supreme Court as to a former trial by the same litigants on the same question. In Turner v. Davidson, 188 Ga. 736, 738 (1) (4 SE2d 814), it is held: "It is well settled that a former decision of this court in the same case becomes the law of that case, and can not thereafter, upon a subsequent appeal, be modified or overruled. Rawlins v. State, 126 Ga. 96 (54 SE 924); Allen v. Schweigert, 113 Ga. 69 (38 SE 397); Western & Atlantic R. Co. v. Third National Bank, 125 Ga. 489 (54 SE 621); Southern Bell Tel. Co. v. Glawson, 140 Ga. 507 (79 SE 136), and cit.” Dixon v. Federal Farm Mortgage Corporation, 187 Ga. 660, 661 (1 SE2d 732).
The Turner case was a full-bench decision. Thus, both the Court of Appeals and the Supreme Court have told Cantrell in this very same case that certiorari is an available remedy.
Now, will the Court of Appeals be allowed to say that Cantrell must suffer because he did exactly what he was told by this court and the Supreme Court to do, that is, bring the case to superior court by certiorari?
The former appeal, the Attorney General argued, and Judge Clark agreed with him (Presiding Judge Hall, now Justice Hall and Judge Evans, concurred), that a direct attack on the decision of the retirement system *458based on findings of the medical board could be directly attacked. The only method for such an attack is, of course, certiorari. The only place where Judge Clark did not agree with the Attorney General was in his decision that Cantrell had a choice, and he could either directly attack the finding of the retirement system by certiorari or he could take his case one more step up the administrative flight of stairs and have a hearing before the Personnel Board. The personnel board sided with Cantrell on the medical question, and the State Forestry Service then sued out certiorari on that decision to the superior court, not in its own name, by the way, but as the "State of Georgia, acting by and through the State Forestry Commission.” See Cantrell v. State, 129 Ga. App. 465, supra.
The Attorney General in that case vociferously contended that the State Personnel Board was without jurisdiction to review the issues presented by the medical report and disability rating of the Retirement System. Again quoting from page 9 of the Attorney General’s brief: "The Employee, quite simply, brought his grievance to the wrong forum — a forum not authorized to hear and rule upon his contention.” And at page 10 he continues: "The hearing in the superior court on the writ of certiorari could give this controversy no greater jurisdiction than the lower tribunal had. The case came to the superior court with the same lack of jurisdiction that obtained before the Personnel Board.” Again, at pages 13, and 14 of the Attorney General’s brief, he complains that the employee appealed to the personnnel board "a medical finding of the State Employees’ Retirement System’s Medical Board,” and that allowing him to do so (instead of appealing from the Retirement Board’s decision) "has opened the proverbial Pandora’s Box.”
Well, the Court of Appeals and the Supreme Court finally held that there was jurisdiction, and, more importantly, that the medical board report on which the retirement system based its disability rating was void.
This clearly meant that the "State of Georgia acting by and through the State Forestry Commission” had to "go back and hang the man right,” which it immediately tried to do. The medical board had another examination *459and made another report. The retirement system again found a disability based thereon and the forestry service again fired Cantrell. Since this court had already unanimously told Cantrell he need not go through the Personnel Board ("Plaintiff could have appealed from the State Retirement Board’s adverse ruling by certiorari to the superior court for a determination of his contention” that the medical board had not acted properly), Cantrell’s attorney took this court at our word, and took the Attorney General at his word, and certioraried the case to the superior court.
Then Pandora’s Box really did fly open. The Attorney General loudly protested that there could be no such thing as a certiorari from a ruling of the retirement board, even if the Court of Appeals had said there could be, — the statement was dicta and if the plaintiff was misled by it, that was just too bad for Cantrell. But can the Attorney General be allowed to change his mind (having failed on the first appeal to establish his contention that the appeal should be from the ruling of the retirement board rather than via a hearing by the personnel board) and Judge Clark be allowed to change his mind and say the Attorney General has shown him the error of his ways, and can Judge Stolz change his mind four days before the end of the term, all to the hurt or ruination of Cantrell? Can the Court of Appeals withdraw the remedy which it solemnly pronounced was available to Cantrell?
The original statement was not dictum, whatever else it might have been. The exact and precise question before this court on the first appeal was whether Cantrell had a right to certiorari from an appeal to the Personnel Board or whether he should certiorari directly from the pronouncement of the retirement system. The Attorney General there contended that the latter method was the only way; and the Court of Appeals decided this issue in his favor by agreeing that such course might be followed. But we also decided in favor of Cantrell that the appeal to the personnel board from the finding of the retirement system did not deprive the superior court of jurisdiction. This is absolutely not dictum! This was a flat construction of the law in the very same transaction we had before — an appeal from a disability discharge of *460appellant by the State Forestry Commission based on a finding of the State Retirement System pursuant to a report of its medical board. Of course there were two examinations. The former appeal held the first examination deficient. This appeal shows the second examination to be deficient. But the man is the same, the employer is the same, and the action of the State Retirement System is the same, based on the same alleged physical disability.
Under Code Ann. § 81A-160(h) "any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” See also Medlock v. Allison, 224 Ga. 648 (1) (164 SE2d 112).
In my opinion the first decision on the question of appellate review was sound. But that is completely immaterial at this point. This plaintiff in this case has the right to certiorari as he did, under express directions so to do from this Court of Appeals, and we can no more violate the statute and our solemn judgments than we can eat again yesterday’s dinner. The Attorney General’s reversal of position on the question of certiorari should be brought to a sudden and definite halt. For this court to follow his lead is both indefensible and illegal.
For the foregoing reasons, I dissent.