Order Heard learned counsels for the petitioners and learned counsels for the State. 2. All the four writ applications raise common issues and accordingly, they have been heard together and are being disposed of by this common order. 3. The writ applications were filed by the petitioners for a direction upon the respondents to consider and promote them as Assistant Professor against the posts earmarked under Rule 7(iii)(c) of the Senior Resident, Tutor and Bihar Medical Education Service Cadre Recruitment, Appointment and Promotion Rules, 2008 in accordance with Rule 6 Criteria (ii) read with Rule 7(Hi)(c) of the' said Rules with all consequential benefits. . 4. All the petitioners were initially appointed as Medical Officer on different dates from the year 1979 to 1997 in the Bihar State Health Service (in short “B.S.H.S."). The Health Service in Bihar prior to 1997 was an integrated cadre consisting of teaching and non-teaching posts. The teaching posts were categorized as Junior Teaching posts of Residents/Registrars and Senior Teaching posts of Assistant Professor, Associate Professor, Professor and Principal. Prior to 1997, appointments to teaching posts were made from the Doctors of the Bihar State Health Services. In 1997, the State Government came out with new Rules known as the Bihar Medical- Education Service Cadre and Appointment to its Cadre Posts Rules, 1997 framed under Article 309 of the Constitution of India, by which a separate teaching cadre was created. The posts of Residents/Registrars, were amalgamated to that of Lecturers known as Junior Teaching posts, while the posts of Assistant Professor, Associate Professor and Professor were kept as Senior Teaching posts to be filed by promotion from the Junior Teaching post on the basis of seniority-cum-eligibility under Rule 8(ii) of the Rules providing for appointment and promotion in the cadre. The entry into the cadre on the post of Lecturer was to be on the basis of competitive examination to be conducted by the Bihar Public Service Commission. The Rules were amended in 2003 under which the designation of Lecturer was replaced by that of Senior Resident for Clinical Departments and that of Tutor for non-clinical and para clinical Departments. The entry into the cadre on the post of Lecturer was to be on the basis of competitive examination to be conducted by the Bihar Public Service Commission. The Rules were amended in 2003 under which the designation of Lecturer was replaced by that of Senior Resident for Clinical Departments and that of Tutor for non-clinical and para clinical Departments. Further, Rule 8 was amended and a new sub-rule (Hi) was introduced which, taking into account the threat of de-recognition of the Medical Colleges of the State on account of posts of teachers remaining vacant for a long period of time or delay in following regular procedures, provided for a one-time appointment as a working arrangement from among the Medical teachers on the basis of seniority-cum-merit in their own pay scales on the recommendation of the Departmental• Promotion Committee. It was further provided that in case proper candidate was not available for appointment under the working arrangement, then on the basis of contract the retired teacher of the same category could be appointed on the said post. The said appointment under working arrangement/contract was to remain in force until regular appointments were made. 5. The Rules again underwent an amendment on 22.3.2004 and apart from the amendments sub-rules (ii)(a) and (ii)(b) were' added. Sub-rule (ii)(b) is relevant in connection with the present writ petitions, which is quoted hereinbelow: (Cfi) ~ qft ~ ~ ~ ~ ~ GRT fc!1m ~ I-{Qllq~IC1~ qft ~ ~ 7:fi"G qft ~ qft c::w.-q ~ >fIV:rriCf), W - >fI'I:'Z!fqCfj ([~ >fI'I:'Z!fqCfj ~ ftcRf ~ <it. cn l<1cn 1£1 ~ ~ 31~ ~fu!$Wnm~~~ 3ffi8JUT- '!.fTC.f~ q;y 11Tffi ~ ~ crU<rcrrW-~ ~ 31T'tW 1R ([~ fcf~ ~ "ffii:rfu qft ~ 1R m 1ft ~ -q 11\1 "IT ~I cnl<1cnlU ~ ~ 31~ ~ t! ~ 1"Ilcnct1cn fu~ qft ~ qft c::w -q ~ ~ 31T'tW 1R ~ .wm ~ ~qf1~ro r"lrcn<:'(-icn fu~ <it ~-mcr~ q;y ~ ~ ~ ~ mr ~I (~) ~ qft ftfcffi ~ CfiRUT ~ ~ ~ GRT fc!1m ~ I-{Qllq~IC1~ cn1 -qp:ffiT ~ ~ qft ~ cn1 c::w -q ~ ~~~itm~<it~ ~ ~ m ~ ~ ~ 1"Ilcn<:'(-icnl' ~ ofrq ~ crU<rcrr-W- ~ ~ 31T'tW 1R. ~ 3ffi8JUT '!.fTC.f~ q;y ~ ~ ~ ~ ~ CIi1:. ~ 3ffi8JUT '!.fTC.f~ q;y ~ ~ ~ ~ ~ CIi1:. 11\1 "IT ~ I (Tf) 6CRf c:t>1~c:t>ID ~~ q;3Tf'tffi: 1R ~ ~ ~ T.rR (fCj1 >mU Writ am: ~ 3Tf'tffi: 1R m "GG: 1R ~ ~ <.JT %m "GG: q;r ~ 'ffi'q q;r ~ ~ ~ ml 6. By the aforesaid amendment, under Rule 8(ii)(b)(b) it was provided that if on account of vacancies in the posts there is apprehension of cancellation of recognition of the Medical Colleges by the Indian Medical Council then the vacant posts of Senior Residents/Tutors can be filled by the Bihar Health Service Cadre from the eligible Doctors of the Bihar Health Services Cadre on the basis of seniority-cum-merit after following the provisions of reservation policy and inviting applications. 7. In the meantime, on 10.3.2004, an advertisement was issued by the Health Department, Government of Bihar for deputation on the post of Senior Residents/ Tutors from amongst the Doctors of the State Health Services. Several of the petitioners applied against the said advertisement, but according to the petitioners, no appointments were made in terms of the said advertisement and subsequently in the year 2005 and 2006 on the basis of panel prepared after following all the procedures, a number of petitioners were appointed on the posts of Tutors/Senior Residents in the Medical Colleges. Similar advertisements were also issued subsequently in the year 2006 onwards on the basis of which several petitioners applied and were appointed on the posts of Senior Residents/Tutors in the Medical Colleges, the last such appointments having been made till May, 2008. According to the petitioners, the appointments have been made pursuant to the newly amended rule 8(ii)(b)(b). However, the appointment letters stated that the appointments have been made for a period of one year or until regular appointments, whichever is earlier, on the basis of contract. It was further stated that after the period of one year was over or if regular appointments were made earlier, all the Doctors would be reverted to their original cadre. It was also provided that their salary and allowances, etc. in their original cadre shall remain protected. The appointment letter .also provided that the provisions of 1997 Rules would continue to apply to the appointees. 8. It was also provided that their salary and allowances, etc. in their original cadre shall remain protected. The appointment letter .also provided that the provisions of 1997 Rules would continue to apply to the appointees. 8. As a matter of fact, however, the petitioners were not reverted to their original cadre and they have continued as Senior Residents/tutors on the basis of extension granted from time to time, lastly till February, 2012. The petitioners through their Association represented against the mention of the word contract in their letters of appointment. A High Level Empowered Committee was also constituted by the Government by! notification dated 30.6.2005 consisting of the Principal Secretary of the Personnel and Administrative Reforms Department as its Chairman, the Departmental Secretary and high Government Officials on the basis of the recommendation of the Fitment Committee, and the recommendations of the Empowered Committee was to be placed before the Government for approval without any further scrutiny by the Finance, Law or Personnel Departments. 9. In the year 2008, the 1997 Rules were replaced by the Senior Resident/tutor and Medical Education Service Cadre Recruitment, Appointment and Promotion Rules, 2008. Under the said Rules, the Bihar Medical Education Service Cadre was to comprise only of' teachers starting at the level of Assistant Professor and above. The posts of Senior Residents/tutors in the Government Medical Colleges were made tenure teaching posts of four years duration. The appointment on the post of Senior Residents/tutors was first to be filled up on the basis of 40% post from the Bihar State Health Services, 40% from the Doctors who have completed the P.G. Course (under Residency Scheme) from the State Medical Colleges and remaining 20% from Doctors who have obtained P.G. Course (Residency Scheme) from outside the State. 10. So far as the post of Assistant Professor is concerned, appointment to the same is to be made from a panel prepared by the B.P.S.C. in accordance with the procedure laid down in Annexure-B of the Rules. The Officers of the State Health Service, who have already served as Senior Resident/Tutor for minimum three years in teaching stream may apply for the post of Assistant Professor. The criteria for selection is on the basis of marks obtained at different levels and also for' original publications, etc. For Senior Residents/Tutors also the criteria of appointment is similarly on the basis of marks obtained at different examinations. The criteria for selection is on the basis of marks obtained at different levels and also for' original publications, etc. For Senior Residents/Tutors also the criteria of appointment is similarly on the basis of marks obtained at different examinations. It is, however, provided under Rule 6 Criteria (ii) that the previous non-tenure post of Senior Residents/Tutors held by Medical Teachers under the panel system and as per the provisions of 1997 Rules on regular basis shall be deemed to be vacant after they are promoted as Assistant Professors and then only these posts would stand converted to tenure posts of four years duration. It is also provided by Rule 7(iii)(c) that in those subjects. were Senior Resident/Tutor appointed under earlier panel system or as per provision of 1997 Rules, are working, new appointment (under this rule) to the post of Assistant Professor shall be made after earmarking that much number of posts for promotion for all such working Senior Residents/Tutors. Rule 6 Criteria (ii) and Rule 7(iii)(c) are quoted below:- "6 Criteria (ii) The previous non-tenure post of Senior Residents/Tutors held by Medical Teachers under the panel system and as per the provisions of 1997 Rules on regular basis shall be deemed to be vacant after they are promoted as Assistant Professors and then only these posts would stand converted to tenure posts of four years duration. 7(iii)(c). In those subjects, where Senior Resident/Tutor appointed under earlier panel system or as per provision of the 1997 Rules, are working, new appointment (under this rule) to the post of Assistant Professor shall be made after earmarking that much number of posts for promotion for all such working Senior Resident/Tutors." 11. The case of the Senior Residents/tutors was considered by the Empowered Committee of Secretaries which suggested an amendment to the 2008 Rules providing that the benefit so far as the Senior Residents/tutors appointed from the State Health Service Cadre are concerned, in their case also they should be appointed as Assistant Professor on the recommendation of the Bihar Public Service Commission. The matter however, does not appear to have been considered by the Government and accordingly, the petitioners have approached this Court by filing the writ petitions. 12. The matter however, does not appear to have been considered by the Government and accordingly, the petitioners have approached this Court by filing the writ petitions. 12. During the pendency of the writ petitions, the Bihar Public Service Commission has come out with an advertisement dated 20th July, 2011 for appointment on the post of Assistant Professor giving the total vacancies on the said post in different Departments as 394. Aggrieved by the same, as no posts were earmarked for the petitioner from the said posts, the petitioners have also assailed the said advertisement by filing the interlocutory applications. 13. Learned counsel for the petitioners submits that the petitioners have been regularly appointed after coming into force the 2004 Amendment Rules and after following the rules of reservation. The very mention of the word contractual in the appointment letters can have no relevance, as there is no provision under the said rules for contractual appointment on the post of Senior Residents and thus the mention of word contractual in their respective letters of appointment have to be ignored as being de hors the Rules. It is submitted that the word contractual has only been put in without reference to the actual position, as the petitioners were already Government servants working in the Bihar State Health Service and no fresh terms and conditions had been imposed upon them and only to limit their period for appointment to one year the said term has been used contrary to the statutory rules. It is submitted that Rule 8(ii)(b)(b) of the 1997 Rules, as amended in 2004, does not lay down any such limitation on an appointment made under the said Rules and thus the executive authorities could not have acted contrary to the said Rules once they had considered the cases of the petitioners on the basis of the eligibility criteria as laid down therein. 14. 14. It is further submitted that the State Government, as a matter of fact, conceded the same as none of the Senior Residents appointed by it was automatically sent back to the Bihar State Health Service on completion of one year term and they have continued on the said post since the year 2005 onwards till date and thus the use of the term contract and period of one year is nothing but mischievous, apart from being de hors the Rules and does not affect their status as regularly appointed Senior Residents under the concerned Rule. 15. It is contended that even before the Medical Council of India during the course of inspection carried out by its team, the petitioners were held out to be legally and regularly appointed Senior Residents on the basis of which the Medical Colleges were saved from the threat of derecognition by the Medical Council of India and they were also issued smart cards by the Medical Council of India as Senior Residents. Any attempt by the State to hold otherwise can only lead to the conclusion that the State Government has tried to defraud the Medical Council of India while holding out before it that the petitioners are Senior Residents/Tutors in the Medical Colleges. 16. It is further submitted by learned counsel that although the appointment letters state that the benefit of experience shall not accrue to the petitioners but ultimately the State Government has accepted that the petitioners would be entitled to the benefit of experience for the period they have served as Senior Residents. 17. The further submission of learned counsel for the petitioners is that the State Government cannot act contrary to the statutory rules and any such action like the statements made in the letters of appointment have to be read in keeping with the statutory rules. 18. Learned counsel for the petitioners urges that if there is statute or rules laying down the manner in which the power conferred is to be exercised then it has to be exercised in that very manner and not in any other way as laid down in a catena of decisions of the Apex Court accepting the proposition laid down by the House of Lords in the matter. 19. 19. It is further contended that even the Empowered Committee of Secretaries had come to the conclusion that the Senior Residents like the petitioners are entitled to the benefit of' a post being earmarked for them as Assistant Professor but due to the action of certain vested interests the same could not be adopted or acted upon. According to learned counsel this clearly shows that the equity is also in favour of the petitioners. On the basis of the same, it is submitted by learned counsel for the petitioners that their appointment as Senior Residents has to be taken as regular appointment under Rule 8(ii)(b) of the 1997 Rules. That being so, they would be automatically entitled to the benefit of Rule 7(iii)(c) of the 2008 Rules. . 20. Learned counsel also assails' the advertisement issued by the B.P.S.C. on the ground that it does not earmark 231 posts of Senior Residents/tutors like the petitioners while issuing the advertisement of all the 394 vacant posts of Assistant Professors and ought to be quashed on the said ground. 21. It is further urged by learned counsel that the advertisement is also bad as it provides for 20% marks for interview whereas no such provision is to be found in Annexure-B to the 2008 Rules which clearly provides for appointment on the basis of marks allotted as per the criteria laid down therein without there being any whisper about marks for interview. It is contended that the provision for interview has been introduced on account of certain vested interest to favour certain candidates. 22. Learned Additional Advocate General No. 11 appearing for the State, on the other hand, submits that the appointment of the petitioner was clearly stated to be a contractual appointment for a maximum period of one year only and the petitioners having accepted and acted upon that appointment letter cannot turn around and challenge the same at this belated stage. According to him, it was a transitory appointment for a transitory period only for one year so that the Medical Colleges of the State are not derecognized by the Medical Council of India. 23. According to him, it was a transitory appointment for a transitory period only for one year so that the Medical Colleges of the State are not derecognized by the Medical Council of India. 23. It is contended by learned counsel for the State that under the Rules of 1997 while certain amendments v ere introduced, Rule 8(i) was never ar1ended and, therefore, the mode of appointment ought to be done on the basis of competitive examination to be conducted by the B.P.S.C. It is stated by him that such examination was conducted in the year 2002 by the B.P.S.C. 24. It is also the contention of learned AAG-11 that under the amended 1997 Rules there was provision for appointment under Rule 8(ii)(b) on contract basis and the said working arrangement/appointment on the basis of contract was to .continue till regular appointments are made and thus the petitioners cannot claim that they were reguiarly appointed on Senior Residents posts. 25. It is also the submission of learned counsel for the State that Rule 7(iii)(c) of the 2008 Rules has no application to the case of the petitioners as the said benefit is only to be granted to those who have been regularly appointed under the 1997 Rules, i.e.. under Rule 8(i); the petitioners not having been so appointed cannot be considered for the post of Assistant Professor and thus the advertisement issued for 394 posts without earmarking the post for Senior Residents like the petitioners is valid and legal. 26. Learned AAG-11 also harps upon the facts that in the year 2009 also regular appointment of Senior Residents was made in which as many as three of the writ petitioners have been selected for the post of Senior Residents and they have been appointed on the tenure post and joined the same. .. 27. It is urged by learned counsel that the State has given the benefit of experience to the petitioners as Senior Residents/tutors and has also relaxed the age for them but the petitioners do not want to undergo any competitive examination and straightaway went to be appointed as Assistant Professors which cannot be said to be a fair demand on their part. 28. Learned counsel submits that the 20% marks granted for interview is permissible under the powers of the Government. 29. 28. Learned counsel submits that the 20% marks granted for interview is permissible under the powers of the Government. 29. Another submission of learned counsel IS that even if the 1997 Rules did not provide for appointment on contract basis for one year, then the State Government has overriding power to make such appointment and the same is not open to challenge in a Court of law. It is further urged by learned counsel that the advertisement being of 10.3.2094 for contractual appointment, whereas the 1997 Rules were amended on 22.3.2004, no benefit of the said Rules can be claimed by the petitioners. 30. I have considered the rival submissions of learned counsel for the parties. On a consideration of the amended Rule 8(ii)(b), it is clear that clause (a) thereof provides for the .appointment on contract basis as a working arrangement of Assistant Professor, Associate Professor and Professor in case of threat for derecognition of the Medical Colleges by the Medical Council of India. Clause (b) thereof provides for filling up the vacant posts of Senior Residents/Tutors. in case of threat of derecognition of-the Medical Colleges by the Medical Council of India from the officers of the Bihar State Health Service Cadre Oil the basis of seniority-cum-merit after inviting applications. Clause (c) mentions that the appointments under working arrangement/contract would continue until regular appointments are made. 31. On a consideration of 1'18 three clauses of sub-rule 2(b) of Rule 8(i) it is evident that while the words working arrangement and contract are found in clause (a) and clause (c), no such terminology has been used in clause (b). This leads to the conclusion that under the 1997 Rules as amended in 2004, a working arrangement/contract was envisaged only for the higher teaching post of Assistant Professor, Associate Professor and Professor, as there is not even a whisper about such working arrangement/contract in clause (b) in relation to appointment of Senior Residents/Tutors. Thus, the Rules themselves do not empower the State Government to appoint on the post of Senior Residents/Tutors in case of such necessity on the basis of working arrangement/contract until regular appointments are made. The primary rule of interpretation is that a provision must be interpreted grammatically and literally unless it leads to absurd conclusions. Clause (b) Interpreted in that manner does not lead to any absurdity. The primary rule of interpretation is that a provision must be interpreted grammatically and literally unless it leads to absurd conclusions. Clause (b) Interpreted in that manner does not lead to any absurdity. It is possible that the rule making authority was thinking providing for regular appointment on the basis of seniority-cum-merit from the Health Service Cadre on the teaching post of Senior Residents/Tutors considering the difficulty that was being faced in making regular appointments so as to save the Medical Colleges from derecognition. Thus, on the basis of the said Rule it has to be held that the appointments made under clause (b) of Rule 8(ii)(b) were regular appointments in terms of the said Rules and not working arrangement/contract. 32. Does the State Government have overriding powers to make appointments as it pleases irrespective of the prevailing statutory rules, as has been urged by learned AAG-11? I am afraid, in a constitutional democracy governed by rule of law, no such plea can be taken by the State. It is true that under Article 162 of the Constitution, the executive power of the State extends to and is coterminous with the power of the State Legislature to make law on a particular subject matter; but that only means that the executive authorities can act in a particular matter within. their jurisdiction even though there are no legislation, statutory rules or rules framed under Article 309 of the Constitution laid down in the matter. Once law and rules are in place, the latter also being legislative in nature, the executive is obliged• to follow the law and rules and it is not open to it to flout the same and act as it pleases. Such power of the executive may only be claimed and exercised in an autocracy and not under a democratic and constitutional regime. The law on this point has been laid down a long time ago by the Constitution Bench of the Apex Court in the case of B.N. Nagarajan and Others vs. State of Mysore and Others: AIR 1966 Supreme Court 1942, in paragraph No. 5 of which it has been held as follows:- "5. It would be convenient to deal with this argument at this stage. Mr. It would be convenient to deal with this argument at this stage. Mr. Namblar contends that the words "shall be as set forth In the rules of recruitment of such service specially made In that behalf" clearly show that till the rules are made in that behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to Art. 309 to make rules of recruitment, etc. before a service can be constituted or a post created or filled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur vs. State of Punjab, 1955-2 SCR 225: ( AIR 1955 SC 549 ), that it is not necessary that there must be a law already in existence before the executive is enabled to function and {hat the power of the executive are limited merely to the carrying out of these laws. We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Art.162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Art. 162 of the Constitution ignore or act contrary to that rule or act." 33. The same was reiterated by another Constitution Bench of the Supreme Court in the case of Sant Ram Sharma VS. State of Rajasthan and Others: AIR 1967 Supreme Court 1910. Thus the submission of learned AAG-11 that the State has overriding power to act in the matter even de hors the statutory rules cannot be accepted. 34. The same was reiterated by another Constitution Bench of the Supreme Court in the case of Sant Ram Sharma VS. State of Rajasthan and Others: AIR 1967 Supreme Court 1910. Thus the submission of learned AAG-11 that the State has overriding power to act in the matter even de hors the statutory rules cannot be accepted. 34. Once it is held that in the face of statutory rules, it is not open to the State to act as it pleases, then it must follow that the appointment of the petitioners having been made subsequent to the amendment to the 1997 Rules on 22.3.2004 from the year 2005 onwards, the same must be in accordance with the said Rules and it is not open to the State Government to create terms and conditions in the appointment letters which are not to be found in the Rules under which the appointments are made. As a matter of fact the Government has itself accepted the fact that the 1997 Rules were applicable to the said appointments and would also apply to the petitioners' case. In this regard law has been laid down by a Constitution Bench of the Apex Court in the case of Roshan Lal Tandon and Another vs. Union of India and Others: AIR 1967 Supreme Court 1889, in which it was held that the legal position of a Government servant is more one of status than of contract and the hall-mark of status is the attachment to a legal relationship of rights and duties imposed by public law and not by mere agreement of the parties. The following observations in paragraph No. 6 of the said decision are relevant in this context, which are quoted hereinbelow:- "6....But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of' a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of' a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmod and Williams on Contracts as follows: "So we may find both contractual and status-obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligation defined by the law itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accident. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to' bring the matter within the sphere of status by authoritatively determining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of contract into that of status"." (Salmond and Williams on Contracts, 2nd edition, P.12'- 35. In view of the aforesaid proposition of law, once the petitioners were appointed on the post of Senior Residents, their conditions of service on the said post would be governed by the provisions of the statutory rules and not merely on what is stated in the .letters of appointment, particularly if such conditions are contrary to what is provided in the Rules. There being no such condition of limited period contractual appointment so far as the Senior Residents are concerned under the amendment of 2004, such conditions will have to be ignored while considering the appointments of the petitioners on the post of Senior Residents/Tutors. . 36. There being no such condition of limited period contractual appointment so far as the Senior Residents are concerned under the amendment of 2004, such conditions will have to be ignored while considering the appointments of the petitioners on the post of Senior Residents/Tutors. . 36. At this stage, the submission of learned counsel for the State that the advertisement having been made on 10.3.2004 for contractual appointment, whereas the rules were amended on 22.3.2004. the benefit of the said amendments cannot be claimed by the petitioners has to be seen. The advertisements continued to be made by the State Government from time to time, in the year 2006 as also twice in the year 2008 in the months of February and May and several of the petitioners before this Court have been appointed on the basis of such subsequent advertisements. In fact, the first appointments were made in the year 2005 and the stand of the petitioners is that no action was taken under the advertisement dated 10.3.2004 and the appointments were, in fact, made under the amended rules of 22.3.2004. It is evident that there was no provision for such type of appointments until the amendments came on 22.3.2004; the entire process of appointment was carried out after the amendment of 22.3.2004 and thus even those petitioners, who were appointed in the year 2005, will have to be considered, as having been appointed under the amended rules of 2004. Since the process of their appointments was identical to those made in the years 2006 to 2008, they cannot be treated as a different class from the other petitioners and. denied any benefit to which the other petitioners are entitled as the same would be arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution of India. It is not even the stand of the State that the case of the petitioners appointed in 2005 stands on a different footing from that of the subsequent appointees. It is, thus, held that all the petitioners whether appointed in the year 2005 or subsequently are entitled to be treated similarly, as the State 'Government all through treated them as belonging to a single category without any distinction inter se between them. 37. It is, thus, held that all the petitioners whether appointed in the year 2005 or subsequently are entitled to be treated similarly, as the State 'Government all through treated them as belonging to a single category without any distinction inter se between them. 37. Once, it is held that the petitioners were appointed as Senior Residents/ Tutors under one of the alternative methods of appointment delineated under Rule 8 of the 1997 Rules, this Court fails to see how the benefit of the provisions of Rule 7(iii)(c) of the 2008 Rules can be denied to them. The said rule merely states that in those subjects where Senior Residents/Tutors appointed under earlier panel system or as per the provisions of 1997 Rules are working. then new appointment under that rule to the post of Assistant Professor shall be made after earmarking that much number of posts for promotion for all such working Senior Residents/Tutors. It is not open to the State to take the stand that the petitioners were not appointed as Senior Residents/Tutors as per the provisions of 1997 Rules. as there were no other rules in existence under which such appointments could have been made and even the appointment letters issued to the petitioners state that they would be governed by the 1997 Rules. The only requirement of Rule 7(iii)(c) is that such Senior Residents/Tutors should be working on the said post for the post of Assistant Professor to be earmarked before promotion is granted to others. It is not denied that all these petitioners were working on the post of Senior Residents/ Tutors when the 2008 Rules ca11e Into force and thus in terms of the said Rules they would become entitled to the benefit of the post of Assistant Professor being earmarked for their promotion. irrespective of the intention as claimed by the Government then or now. 38. Even under the principles of equity, the petitioners having worked continuously as Senior Residents/tutors appointed after following the due process of appointments under the statutory rules, they cannot be discriminated against by the State Government and would be entitled to the benefits that are available to other Senior Residents/tutors working in the Medical Colleges at the time when the 2008 Rules were framed. 39. 39. Thus, this Court is of the view that the State/B.P.S.C. while issuing the advertisement ought to have kept reserved/ earmarked the post of Assistant Professors for the Senior Residents/Tutors like the petitioners, who, have been appointed from the year 2005 onwards till the coming into force of the 2008 Rules. 40. The submission of learned A.A.G.11 that only those appointed under Rule 8(i) of the 1997 Rules are entitled to the benefits of Rule 7(iii)(c) of the 2008 Rules cannot be accepted in view of the specific provisions of the said Rules as also what has been held above. Similarly. the fact that three of the writ petitioners had applied in the year 2009 and were selected can make no difference to the legal rights of the Senior Residents/tutors working in the Medical Colleges before coming into force of the 2008 Rules. 41. I have already held that the State has no power to act contrary to the statutory rules. That being so, it was not open to it in the advertisement to provide 20% marks for interview when no such provision for interview is given in Annexure-B to the 2008 Rules, which provide in detail as to the manner in which the Assistant Professors are to be awarded marks for the purpose of selection and leave no scope for the same, as they do not at all mention any marks for interview. It is true that where the statutory rules are in existence, the authorities have power to fill up gaps in the rules by issuing executive instructions but where the rules themselves are clear and comprehensively cover the field, it is not open to them to act contrary to the said rules by providing what is not provided for in the said rules. Thus, the provision for 20% marks for interview in the advertisement being contrary to the 2008 Rules is struck down. 42. The advertisement is also struck down to the extent that it provides for filling the entire 394 vacancies without earmarking any post of Assistant Professor for the petitioners and other Senior Residents/tutors appointed after 22.3.2004 and before the enforcement of the 2008 Rules. 43. In the light of the aforesaid discussions, the writ applications are allowed. The respondents are directed to consider the case of the petitioners for promotion under Rule 7(iii)(c) of the 2008 Rules. 43. In the light of the aforesaid discussions, the writ applications are allowed. The respondents are directed to consider the case of the petitioners for promotion under Rule 7(iii)(c) of the 2008 Rules. The advertisement dated 20.7.2011 issued by B.P.S.C. is struck down to the extent as indicated above. It would, however, be open to the respondents to issue a corrigendum with respect to the number of vacancies to be filled up on the basis of the provisions of Annexure-B of the 2008 Rules. However in the facts and circumstances of the case, there shall be no order as to costs. 44. It is made clear that the benefit of this decision shall be given to all the Senior Residents/tutors appointed after 22.3.2004 irrespective of the fact whether they have approached this Court or not.