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2021 DIGILAW 696 (JHR)

Manoj Kumar Bakshi v. State of Jharkhand

2021-09-02

DEEPAK ROSHAN

body2021
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred by the petitioner for following reliefs: (i) Quashing of Advertisement No. 3619/RIMS/ Ranchi dated 07.06.2012 issued by Respondent No.3: (ii) Restraining the respondents from proceeding with the selection process for appointment of Residents/Sr. Residents/Assistant and Associate Professor in Pediatrics department of RIMS and for reserving one post for the petitioner who has already completed much-much more than three years of satisfactory service as Senior Resident: (iii) For restraining the Respondent No.2 from filling up the vacancy of Assistant and Associate Professor and also for promotion of the petitioner to the post of Assistant Professor as almost all similarly situated Residents appointed together have been granted promotion as Assistant Professors in different departments of RIMS and now since the petitioner has become entitled to the post of Associate Professor, for considering his case for promotion. 3. The facts of the case lie in a narrow compass. An advertisement dated 23.03.2004 was published in daily newspaper inviting application for appointment on various posts including the post of Residents/Tutors in different departments. The petitioner having requisite qualification for appointment of Residents/Senior residents applied to the post and pursuant thereto; he was appointed vide letter no. 5569 dated 20.09.2005. Thereafter, the petitioner was notified as resident along with other residents working in other departments. Further, vide Memo No. 4844 dated 24.06.2008 the Director has extended the service of the petitioner along with several other senior residents. It also appears that the petitioner has earlier filed writ application being W.P.(S) No. 323 of 2011; however, the same was dismissed due to non-appearance of the counsel and pursuant thereto; the petitioner filed the instant writ application. 4. The grievance of the petitioner is that in the advertisement published in the newspaper as well as in the letter of appointment it was mentioned that the posts were permanent and appointment was on probation for two years. However, at the bottom of letter of appointment, a hand written entry was made to the effect that the post of Resident/Tutor is tenure post for three years though there was no such condition in the advertisement and as such, said entry was meaningless. The further grievance of the petitioner is that other senior residents, namely Dr. However, at the bottom of letter of appointment, a hand written entry was made to the effect that the post of Resident/Tutor is tenure post for three years though there was no such condition in the advertisement and as such, said entry was meaningless. The further grievance of the petitioner is that other senior residents, namely Dr. G. Minz was actually appointed after the petitioner on 21.10.2005 has also been granted promotion as Associate Professor on 31.07.2008 even before completion of minimum requirement of three years and the same thing happened with other doctors namely, Dr. B. Kumar, Dr. A. K. Kamal, Dr. Bela R. Kerketta and others. The contention of the petitioner is that these doctors were not even appointed together with the petitioner; rather they were taken on lien from State service and have been granted promotion. In nutshell, the crux of the grievance is that other similarly situated persons who were appointed along with the petitioner and those who were taken on lien and were given job pursuant to the appointment of this petitioner; all were given promotion as such; a pick and choose method has been adopted by the respondent-RIMS, which is against the settled principle of law. Though, vide Memo No. 4844 dated 24.06.2008; the Director has extended the services of the petitioner along with several other senior residents; however, subsequently, Dr. Abhay Kumar, Dr. Rishi Tuhin Guria, Dr. Sunanda Jha and others were granted promotion as Assistant Professor leaving this petitioner from the fruit of promotion. Thus, pick and choose method has been continued by the Respondent-RIMS. Further grievance of the petitioner is with regard to Advertisement published on 07.06.2012; that it is against the M.C.I. regulation, inasmuch as, an experience of five years is required and not four years as such; said advertisement should be quashed and set aside. 5. During pendency of this writ application, the petitioner has filed an amendment application challenging the order as contained in Memo No. C-815 dated 28.10.2012 issued by Respondent No.3; whereby the service of the petitioner whose name appears at Serial No.1 has been terminated in the garb of cancellation of extension of service as Senior Resident beyond three years. The said Interlocutory Application being I.A. No. 918 of 2013, was allowed by this court vide order dated 10.04.2013. The aforesaid order of termination is annexed as Annexure 7 to the Supplementary Affidavit dated 30.10.2012. The said Interlocutory Application being I.A. No. 918 of 2013, was allowed by this court vide order dated 10.04.2013. The aforesaid order of termination is annexed as Annexure 7 to the Supplementary Affidavit dated 30.10.2012. In the meantime, respondent-RIMS advertised the appointment for the post of Senior residents vide advertisement dated 23.09.2015 which was again challenged by this petitioner in I.A. No. 5633 of 2015 wherein the petitioner prayed for stay in the process of recruitment under Advertisement dated 23.9.2015 for the post of Senior Resident in the discipline of Pediatric. However, this Court refused to grant stay in the recruitment process under Advertisement No. 6612 dated 23.09.2015. 6. Mr. Anil Kumar Sinha, learned Senior Counsel for the petitioner submits that in the Advertisement dated 23.03.2004 inviting applications for appointment on various posts including the post of residents there was no mention that the post of resident was for three years; rather from perusal of the advertisement itself it transpires that the only criteria was that the incumbents for the above mentioned posts must possess required academic qualification of Teaching and Research experience as prescribed by Medical Council of India and the above mentioned posts will be as per the rules and regulations of the RIMS. He further draws attention of this Court towards the appointment letter and submits that at Clause-2 it was specifically indicated that the posts were permanent subject to probation of two years. However, at the bottom of the letter of appointment, a hand written clause has been added that the post of Resident/Tutor will be tenure post for three years though there was no such condition in the advertisement and thus such hand written entry was meaningless. He further submits that the petitioner continuously worked in the department of Pediatrics and was notified as resident along with other residents working in all the departments. He further draws attention of this court towards Annexure-3, which is the promotion order dated 30.07.2008 and submits that similarly situated persons were granted promotion. Altogether nine persons were promoted; however, the service of the petitioner was simply extended for three years. Learned Senior Counsel further submits that the law is well settled that there cannot be a class amongst class and there should not be any discrimination between the similarly situated persons. There are number of examples where the colleagues, who were appointed along with the petitioner, were promoted. Learned Senior Counsel further submits that the law is well settled that there cannot be a class amongst class and there should not be any discrimination between the similarly situated persons. There are number of examples where the colleagues, who were appointed along with the petitioner, were promoted. However, respondents have adopted pick and choose method in not promoting the petitioner and action of the respondents in advertising the post afresh is just to deny the benefit of promotion to the petitioner. He further draws attention of this court towards the counter affidavit filed by the State wherein at paragraph 11 the State has admitted that the promotion vide notification dated 31.07.2008 of the Department of Health, Medical Education and Family Welfare were made against vacant posts but it was done in contravention of provisions of RIMS Rule, 2002 in public interest under certain circumstances. Referring to this paragraph he submits that no public interest has been shown by respondent-RIMS. He lastly submits that primarily; since there was no condition with regard to tenure post in case of resident doctors/tutors in the advertisement; as such in absence of any rules there should not be any addition in the appointment letter. Secondly; in the advertisement which was published in 07.06.2012 there was a specific condition at Serial No. 21 that post of Senior Resident of the department will be of three years tenure. This condition was not in the Advertisement of 2004 whereby the petitioner was appointed. Thus, the respondents were having full knowledge that unless there is any condition in the advertisement or if there is any rule; then only, in the offer of appointment; any extra condition can be incorporated and that is the reason that in the advertisement of the year 2012; they have specifically mentioned that the post of Senior Resident of all the departments will be of three years tenure. He contended that this argument is fortified by the action of the respondents, inasmuch as, though in the RIMS Rules 2002; there was no rule of tenure post but in the RIMS Rules 2014; there was specific clause that the post of the senior resident and tutor will be tenure post. 7. Mr. He contended that this argument is fortified by the action of the respondents, inasmuch as, though in the RIMS Rules 2002; there was no rule of tenure post but in the RIMS Rules 2014; there was specific clause that the post of the senior resident and tutor will be tenure post. 7. Mr. Sinha concludes his arguments by submitting that: (a) The act of the respondents in incorporating a new clause of tenure post in the appointment letter is not sustainable in the eye of law, inasmuch as, neither the said clause was indicated in the advertisement nor was there any rule. Further, RIMS Rules 2014 is prospective in nature and cannot be applied retrospectively. (b) The respondents cannot adopt pick and choose method but unfortunately they have done the same which is clear by the affidavit filed by the State respondent admitting that similarly situated persons have been promoted in contravention of the rules in public interest but such public interest has neither been explained in the affidavit nor in the argument. Further, the State cannot be allowed to discriminate anyone in the garb of public interest. (c) Even the order of cancellation of service was issued without issuing any show cause notice and without hearing the petitioner which itself is not sustainable in the eye of law as such; the impugned order of termination should be quashed and set aside and the petitioner should be given promotion as has been given to other similarly situated persons namely Dr. Gregory Minz, Binay Kumar etc. who are still working on the post of Assistant Professor whereas services of the petitioner has been discontinued. In support of his arguments, Mr. Sinha relied upon the following judgments: (2015) 2 JBCJ 212 (2007) 10 SCC 627 AIR 1986 Supreme Court 1571 (2016) 3 Supreme Today 370 8. Dr. A.K. Singh learned counsel for the respondent-RIMS reiterated the stand made in the counter affidavit and submits that there is no provision for promotion in RIMS under the provisions of RIMS Rules, 2002 and all the teaching posts have to be filled up by open advertisement following guidelines under the rule. Dr. A.K. Singh learned counsel for the respondent-RIMS reiterated the stand made in the counter affidavit and submits that there is no provision for promotion in RIMS under the provisions of RIMS Rules, 2002 and all the teaching posts have to be filled up by open advertisement following guidelines under the rule. He further submits that vide notification dated 31.07.2008; promotions were given to few similarly situated persons but the same was in contravention to Rule-11 of RIMS Rule, 2002 but it was done in public interest as such no relief can be granted to the petitioner. This argument is also supported by the counter-affidavit dated 12.12.2012 of the respondent-State as in Paragraph-11 it has been admitted by the State that the promotions were made against vacant post but it was done in contravention of the RIMS Rules 2002 in public interest. 9. Learned counsel while opposing the contention of the petitioner submits that the post of Residents/Tutors and Registrar stand on the same footing so far as the terms and conditions of the appointment are concerned and all these posts are tenure posts in which the incumbents are appointed for a fixed tenure of three years. Learned counsel further tries to justify the appointment letter and submits that all the posts in RIMS are made on a common format of appointment letter wherein certain clauses/conditions are added or deleted depending upon specific terms and condition of service of an appointee. Such specific individual conditions/clauses may be typed or hand written. The petitioner was appointed for a fixed tenure of three years only and this condition was added in writing by hand in his appointment letter. He further referred to Annexure -SC/A series annexed with the supplementary counter affidavit dated 17.04.2021 and submits that the post of resident will be tenure post of three years has been added as Clause-12 in handwriting in the case of five other residents appointed in the same transaction in the year 2005. In case of other appointees who were appointed along with the petitioner where in the appointment letter it was not mentioned or indicated by hand writing; separate letters were issued to them with regard to tenure appointment which is annexed as Annexure SC/B to the supplementary counter affidavit. 10. In case of other appointees who were appointed along with the petitioner where in the appointment letter it was not mentioned or indicated by hand writing; separate letters were issued to them with regard to tenure appointment which is annexed as Annexure SC/B to the supplementary counter affidavit. 10. Learned counsel contended that the resident doctors including this petitioner accepted the terms and conditions of their appointment being on a fixed tenure posts for three years only and now it is not open to the petitioner to challenge this condition of his appointment being tenure based for three years in 2012. Such a belated claim of permanence/regularization is hit by the doctrine of delay and latches. He contended that the law does not prohibit incorporating any condition by hand written. He reiterated that sanctioned vacant posts in RIMS have to be filled up by open advertisement as per RIMS Rules’2002 and promotion is only allowable from Assistant Professor and above. He further tries to impress this court by referring Sections 12 and 29 of the Rules-2002 and submits that the Governing Body of RIMS is empowered to take any decision. All the administrative and financial powers vests in the Governing Body and the Governing Body has resolved that posts of Residents/Tutors will continue to be a tenure post as before. He fairly submits that the Governing Body has allowed the petitioner to remain in service till new residents are selected. He contended that pursuant to the advertisement floated by RIMS, new residents were already selected and waiting to be appointed on the post and some of them has already joined. 11. It is not out of place to mention here that on a specific query made by this Court by referring to Clause-2 of the appointment letter which stipulates that the appointment will be a permanent appointment subject to probation of two years; learned Counsel fairly submits that this Clause-2 of the appointment letter (Annexure-2) should be scrapped. He admitted that Clause-12 (hand written) of the appointment letter is contradictory to Clause 2. He further admits and supports the stand taken by the respondent-State as mentioned in para no. He admitted that Clause-12 (hand written) of the appointment letter is contradictory to Clause 2. He further admits and supports the stand taken by the respondent-State as mentioned in para no. 11 of its counter affidavit stating therein that vide notification 162/7B dated 31.07.2008; the department of Health, Medical Education and Family Welfare, promotions were made against the vacant posts and the same was done in contravention of Rule 11 of RIMS Rule 2002. 12. Learned counsel lastly submits that the petitioner cannot claim negative equality. If there is no rule he should not get promotion. Dr. Singh further submits that though specific rule came in the year 2014 and specific clause in the advertisement was incorporated in the year 2012, but the fact remains that as per RIMS Rules’ 2002; the vacant sanctioned posts in RIMS has to be filled up by open advertisement. He fairly submits that the action of giving promotion to similarly situated persons was of the State respondents and that is the reason they have accepted the same. He further could not controvert the fact that it is only by gazette notification which came in 8th September, 2014; specific clause was incorporated in Rule 11 (V) to the effect that the post of Resident Doctors and Tutors will be for three years tenure post. He concluded his argument by submitting that if the petitioner was not interested in tenure post he should have questioned the appointment letter in the year 2005 itself or in 2008 when his term was extended for three years. In support of his argument he relied upon the following judgments. (2019) 2 SCC 364 (2018) 12 SCC 50 (2014) 1 SCC 161 13. Mr. K. K. Singh, learned counsel for the respondent-State has adopted the argument of Dr. A. K. Singh, learned counsel for the Respondent-RIMS. 14. Having heard learned counsel for the parties and after going through the relevant documents annexed with the respective affidavits and the averments made therein it appears that the facts are admitted; thus, following issues emerges for consideration by this court:- (i) Whether in absence of any statutory rule any additional condition can be incorporated in the appointment letter when the same was not in the original advertisement ? (ii) Whether Rule 2014 can be applied in the case of the petitioner when in Rule 2002 there was no mention with respect to petitioner’s post as tenure post ? (iii) Whether clause 12 of the appointment letter which speaks about the tenure post can be justified in presence of Clause 2 which specifically indicates that the post is a permanent post with only condition that there will be probation for two years ? (iv) Whether the respondents can adopt pick and choose method by giving benefit of promotion to other similarly situated employees in the name of public interest and not giving the same benefit to this petitioner making a class amongst class in the name of public interest ? 15. So far as issue no. 1 is concerned; it is necessary to quote the condition as incorporated in the advertisement for appointment which clearly states that “the incumbents of the abovementioned posts must possess requirement of academic qualifications, teaching and research experience as prescribed by Medical council of India. The terms and condition of service related to the abovementioned posts will be as per rules and regulation of RIMS”. Pursuant to the advertisement the petitioner qualified for the post of tutor, however, when the appointment letter was issued, it transpires that a hand written clause has been incorporated in the appointment letter to the effect that the post of tutor was a tenure post. Interestingly, in the said appointment letter issued to the petitioner; at Clause-2 it was specifically mentioned that the appointment is for a permanent post subject to probation of two years. Thus, Clause-2 of the appointment letter was inconsonance with the advertisement whereas Clause-12 was contradictory to the advertisement. For brevity Clauses-2 and 12 of the appointment letter issued to the petitioner is quoted herein below:- ^^1------ 2- fu;qfDr LFkk;h in ij fdUrq nks o"kksZ rd izksos'ku (probation) dky esa vLFkk;h jgsxhA mDr vof/k esa mudh lsok larks"ktud ik;s tkus ij gh mUgsa fu;fer lsok esa lek;kstu fd;k tk ldsxk A 12- jsthMsaV dk in 3 o"kksZ ds fy, VsU;ksj in gksxkA^^ 16. By going through the two clauses of the appointment letter it clearly transpires that Clause-2 specifically states that it was a permanent appointment subject to probation of two years. On the other hand, Clause-12 was with respect to the fact that the appointment was a tenure post for three years. By going through the two clauses of the appointment letter it clearly transpires that Clause-2 specifically states that it was a permanent appointment subject to probation of two years. On the other hand, Clause-12 was with respect to the fact that the appointment was a tenure post for three years. Now the question arises as to whether there was any rule which could support the stand of the respondent that it was a tenure post. In this regard after going through the Rule of 2002, it appears that there was no such rule which spelt out that the post of Resident/Tutor was a tenure post. In this regard, Clause 11 of Rule-2002 which deals with the condition is quoted herein below:- ^^1---- 2------ 11- inks ij fu;qfDr %&¼1½¼1½ 'kS+{kf.kd laoxZ ds lHkh inksa ij fu;qfDr] [kqys foKkiu rFkk 'kS+{kf.kd laoxZ ds inksa gsrq LFkk;h p;u lfefr }kjk dh xbZ vuq'kalvksa ds vk/kkj ij 'kklh ifj"kn }kjk dh tk;sxhA ,slh lHkh fu;qfDr;kW lafonk ds vk/kkj ij Hkh fo'ks"k lsok&'krZ fu/kkZj.k dj dh tk ldsxhA ¼2½ 'kS+{kf.kd laoxZ ds lHkh inksa ds fy, 'kS{kf.kd ;ksX;rk ,oa vuqHko ogh gksxk tks Hkkjrh; fpfdRlk ifj"kn] Hkkjrh; nUr ifj"kn] Hkkjrh; uflZx ifj"kn vFkok ,slh fdlh vU; oS/kkfud ifj"kn] tSlk ykxq gks] ds }kjk fu/kkZfjr fd;k x;k gks------A^^ 17. From record, it further transpires that when the RIMS Rules’ 2002 was amended in the year, 2014, it was specifically mentioned at Clause-11 that the post of Resident Doctors and Tutors would be of three years tenure post. Relevant portion of Clause-11 is quoted herein below:- ^^11- fofHkUu inksa ij fu;qfDr ,oa izksUufr fu;ekoyh fjEl vf/kfu;e] 2002 esa 'kS{kf.kd laoxZ dh fu;qfDr ,oa izksUufr ds laca/k esa nks fHkUurk gS ckrs of.kZar gSA I. ……… V. fpfdRlk ,oa nar fpfdRlk foHkkxksa esa ojh; vkoklh; fpfdRldksa ,oa V;qVjksa dh fu;qfDr izfdz;k o"kZ esa nks ckj dh tk;xh rFkk bls izR;sd o"kZ 30 twu vkSj 31 fnlEcj rd iwjk dj fy;k tk;sxk A ojh; vkoklh; fpfdRldksa ,oa V;wVjksa dk in rhu o"kksZ dk tenure in gksxk --------- A^^ 18. Thus, for the first time the condition of “Tenure Post” was incorporated in the year 2014 and admittedly; at the time of advertisement in 2002, there was no such condition that the post of Resident Doctors /Tutors would be a tenure post for three years. Thus, for the first time the condition of “Tenure Post” was incorporated in the year 2014 and admittedly; at the time of advertisement in 2002, there was no such condition that the post of Resident Doctors /Tutors would be a tenure post for three years. This opinion is also supported by the fact that when for the appointment an advertisement was published in the Newspaper in the year 2012; a specific clause at Clause-21 was incorporated to the effect that post of senior resident of all departments shall be of three years tenure. Relevant clause of the advertisement published in 2012 is quoted herein below:- “21…… post of senior residents of all departments shall be of three years tenure.” In other words, even the respondents knew full well that any condition which is required for appointment must be incorporated in the advertisement itself unless there is a specific Rule in that behalf. In this regard reference may be made in the case of Md. Zamil Ahmed Versus The State of Bihar & Ors., reported in 2016 (3) Supreme 370 , wherein the Hon’ble Apex Court has stated that the State was not entitled to take advantage of their own mistake, if they felt it to be so. During course of argument, Dr. Singh fairly submits that the appointment letter which was issued to this petitioner was on a general format and Clause-2 is now redundant in the background that post of Resident Doctors/ Tutors are of tenure post. This argument of the respondent cannot be accepted, in view of the specific discussion made hereinabove that there was no rule to the effect that these posts were a tenure post and this clause for the first time came in picture in the Advertisement of 2012 and further the same clause was incorporated by amendment in the year 2014. In the instant case; admittedly the petitioner was given appointment however, a clause of tenure post was also incorporated by hand. However, as stated hereinabove in the same appointment letter it was also indicated that the post was permanent subject to probation of two years. Now the law is well settled that unless and until there is any statutory rule or regulations; subsequent amendment cannot be made in the appointment letter, if the same is not in the advertisement. In the case of Maharashtra SRTC & Ors. Vs. Now the law is well settled that unless and until there is any statutory rule or regulations; subsequent amendment cannot be made in the appointment letter, if the same is not in the advertisement. In the case of Maharashtra SRTC & Ors. Vs. Rajendra Bhimrao Mandve & Ors., reported in (2001) 10 SCC 51 , the Hon’ble Apex Court has held that “the Rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced.” Further, in the case of Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation & Ors., reported in (2000) 5 SCC 287 , the Hon’ble Court observed that “if a term of the tender having been deleted after the players entered into the arena it is like changing the rules of the game after it had begun.” 19. In this case the position is much more serious, inasmuch as, after the entire selection process is over for appointment; later on one additional clause was incorporated in the appointment letter by hand that the post was tenure in nature. In the case of Sonia Vs. Oriental Insurance Co. Ltd. And Others, reported in (2007) 10 SCC 627 , the Hon’ble Apex Court referring its earlier decision has reiterated the same principle. Paragraph 10 of the said judgment is quoted herein below. “10. In N.T. Devin Katti v. Karnataka Public Service Commission this Court has held that where selection process has been initiated by issuing an advertisement inviting applications, selection should normally be regulated by the rule or order then prevalent and also when advertisement expressly states that the appointment shall be made in accordance with the existing rule or order, subsequent amendment in the existing rule or order will not affect the pending selection process unless contrary intention is expressly or impliedly indicated.” Even otherwise, the fact clearly transpires that three year’s term was completed in the year, 2008 and many other persons who were appointed along with the petitioner and also who were appointed subsequently, were given promotions, as such, there was a reasonable expectations in the mind of the petitioner that his case would also be considered for promotion. All of a sudden in the year, 2012 by publishing an advertisement for new appointment; the action of the State in terminating this petitioner does not appears to be justified. The State cannot take benefit of its own mistake. 20. Last but not the least; the terms and conditions of service can be traced in the service rules or in the advertisement and certainly not in a hand written added clause in the appointment letter. In view of the aforesaid discussion; the Issue No. 1 is decided in favour of the petitioner, inasmuch as, in absence of any statutory rule and regulation; any additional condition cannot be incorporated in the appointment letter when the same was not in the original advertisement. 21. So far as Issue No. 2 is concerned that whether RIMS Rule-2014 can be applied in the case of petitioner when in Rule-2002, there was no mention with respect to the petitioner’s posts as tenure post, it would be relevant to see the Rule itself which clearly transpires that the said Rules will be effective from the date of publication in the Official Gazette. Thus, it can be easily said that the said amendment made in 2014 Rules was prospective in nature and the same cannot be applied in the case of the petitioner who was appointed pursuant to the Rule-2002 where there was no mention with respect to petitioners posts as tenure post. The law is also well settled in this regard that statutory Rule or Government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Reference in this regard can be drawn from the case of A.A. Calton versus. Director of Education and Anr., reported in (1983) 3 SCC 33 wherein the Hon’ble Apex Court has clearly held that “It is true that the Legislature may pass laws with retrospective effect subject to recognized constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect”. The same principle is being followed till date. Hence, issue no.2 is also decided in favour of the petitioner. 22. The same principle is being followed till date. Hence, issue no.2 is also decided in favour of the petitioner. 22. So far as issue no 3 is concerned, as to whether Clause 12 of the appointment letter which speaks about the tenure post can be justified in presence of Clause-2 which specifically mentions that the post is a permanent post with only condition that there will be probation for two years; in this regard, the argument of the respondent-State that the petitioner was knowing about the fact that it was a tenure post as such he should not have joined the post; is not accepted by this Court in the background that the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conducted unless some overriding public interest comes in the way. In this regard reference may be made to the decision rendered in the case of Madras City Wine Merchants Association & Anr. Vs. State of Tamil Nadu & Ors., reported in (1994) 5 SCC 509 , wherein the Hon’ble Apex Court has given the circumstances which may lead to the formation of legitimate expectations. One of such circumstances is when the existences of a consistent practice in the past which the person can reasonably expect to operate in the same way. The facts of this case as narrated hereinabove clearly transpires that several persons were appointed along with this petitioner; however, some of them were given promotions but the petitioner was left out and even in the year, 2008 his services were extended for three years, but at the same time the other doctors whose services were extended were subsequently given promotion; as such, it can be easily inferred that the petitioner was having a legitimate expectation and for this he made several representations before the concerned respondent. Reliance can also be made to the case of Council of Civil Service Unions & Ors. Vs. Reliance can also be made to the case of Council of Civil Service Unions & Ors. Vs. Minister for the Civil Service, reported in (1984) 3 ALL ER 935, wherein it has been held that even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the Court will protect his expectation by judicial review as a matter of public law. This proposition was further reiterated in the case of Union of India & Ors. Vs. Hindustan Development Corporation & Ors., reported in (1993) 3 SCC 499 , wherein the passage of Halsbury’s Law of England has been quoted which states that a person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment and the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so. 23. In this view of the mater, the argument of respondents that the petitioner was knowing the fact that the post was tenure when the appointment letter was handed over to him, as such he should have left the job or questioned it at that very moment is not accepted by this Court, inasmuch as, several other persons appointed with the petitioners got promotion, however the petitioner has been singled out. In view of the aforesaid discussions; issue no. 3 is decided in favour of the petitioner and clause 12 of the appointment letter which speaks about the tenure post cannot be justified and has no legs to stand in the eye of law in presence of Clause-2, which certainly created a reasonable expectation in the petitioner and all subsequent act of the respondents in giving promotion to other similarly situated further strengthened the expectation of this petitioner. 24. The last issue; as to whether the respondents can adopt pick and choose method by giving benefit of promotions to other similarly situated Doctors in the name of public interest is concerned; it is held that now the law is well settled that there cannot be a class amongst class and if similarly situated persons are given some benefit and others are discriminated; same cannot be justified. In the case of State of Uttar Pradesh and Others Versus Arvind Kumar Srivastava and Others, reported in (2015) 1 SCC 347 has held at paragraph 22.1 as under:- “22.1. The normal rule is that when a particular set of employee is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.” In yet another judgment the Division Bench of this Court in the case of The State of Jharkhand through the Chief Secretary, Government of Jharkhand and Others Vs. Vinay Kumar, reported in 2015 SCC Online Jhar 398 has held at paragraph 6 and 7 as under:- “6. Mr. Pathak submitted that perusal of the order dated 13.09.2011 passed in the aforesaid writ petition depicts as to how the case of the petitioner was singled out for not granting him appointment on the Class-III post and ultimately, learned Writ Court directed the respondent-state (Appellant) to consider the case of the petitioner for his appointment on Class-III post which aspect was considered by the Committee once again and recommended also for Class-III post. 7. Learned Senior Counsel submitted that may be the petitioner at one time had accepted the Class-IV post, but that fact, by itself, would not snatch the right of the petitioner when other similarly situated persons were duly considered favourably for appointment on Class-III post. It is in this factual background, the Learned Writ Court directed the appellant-State to consider the case of the petitioner for appointment on Class-III post.” 25. Even otherwise, appointment of any person is a contract and unreasonable contract cannot stand in the eye of law. Reference in this regard may be made to the decision of the Hon’ble Apex Court in the case of Central Inland Water Transport Corporation Ltd. and another Vs. Even otherwise, appointment of any person is a contract and unreasonable contract cannot stand in the eye of law. Reference in this regard may be made to the decision of the Hon’ble Apex Court in the case of Central Inland Water Transport Corporation Ltd. and another Vs. Brojo Nath Ganguly and another, reported in AIR 1986 SC 1571 wherein the Hon’ble Apex Court at paragraph 90 and 92 has laid down the law. After going through the aforesaid judgment in the factual background of this case; it can be said that since the petitioner was not in the bargaining capacity and he was in need of the job; as such he did not raise his voice about a condition which was incorporated subsequently by hand and accepted the job and the moment other Doctors who were also appointed along with the petitioner and those who were subsequently appointed were given promotion; the petitioner represented before the concerned Respondent. 26. At this stage it is relevant to refer the affidavit filed by the respondent-State wherein at paragraph 11 the respondent-State has admitted that vide notification 162/7B dated 31.07.2008 of Department of Health, Medical Education and Family Welfare, promotions were made against vacant post, but it was done in contravention to the provision of Rule 11 of RIMS Rule 2002 in public interest under certain circumstances. Thus, the respondent-State is admitting that they have made a class amongst class by picking few doctors for promotion in the name of public interest. Even it is assumed that those similarly situated persons were promoted dehors the RIMS Rules’ 2002 in public interest; but it has not been explained as to what was the public interest in leaving out this petitioner. 27. Now coming to the judgments cited by the respondent-counsel; it transpires that the same are not applicable in this case, inasmuch as, in the case of S.C. Singh versus State of Uttarakhand and Others, reported in (2019) 2 SCC 364 ; the Advertisement was very clear with regards to the tenure post. Further, in the case of Raj Balam Prasad & Ors Vs. State of Bihar & Ors, reported in (2018)12 SCC 50 the State was having power under Rule 57A of the Bihar Certificate Manual and the appointment was made for a fixed period under the said rule. Further, in the case of Raj Balam Prasad & Ors Vs. State of Bihar & Ors, reported in (2018)12 SCC 50 the State was having power under Rule 57A of the Bihar Certificate Manual and the appointment was made for a fixed period under the said rule. Likewise; in the case of Central Electricity Supply Utility of Odisha Versus Dhobei Sahoo & Ors. reported in (2014)1 SCC 161 , the respondents were having a policy/scheme that the age of the candidate shall not exceed 55 years. Thus, all the judgments cited by the Respondent RIMS are not applicable in the factual background of this case. 28. In view of the aforesaid discussion and the judicial pronouncements, the instant writ application is allowed and it is held that the petitioner’s appointment was not a tenure post and Clause-2 of the appointment letter overrides Clause-12 which was subsequently added. The order as contained in Memo No. C-815 dated 28.10.2012 issued by Respondent No.3; whereby the service of the petitioner has been terminated; is quashed and set-aside so far as it relates to the petitioner (Annexure 7 to Supplementary Affidavit dated 30.10.2012). It is further held that the petitioner is entitled for promotion and all resulting benefits. Consequently, the respondents are, hereby, directed to reinstate the petitioner and give him promotion what has been given to other similarly situated Doctors who were appointed along with this petitioner and give all consequential benefits to him. The entire exercise shall be completed within a period of four months from the date of receipt /production of copy of this order. 29. With the aforesaid terms, the instant writ application stands disposed of.