Manoj Kumar Bakshi vs The State Of Jharkhand
2021 Latest Caselaw 3218 Jhar

                                 1




IN THE HIGH COURT OF JHARKHAND AT RANCHI
             W.P.(S) No.6311 of 2012
                       --------
Manoj Kumar Bakshi                   ..... Petitioner
                            Versus
1. The     State   of   Jharkhand,      through   the   Secretary,
     Department of Health, Medical Education and Family
     Welfare, Nepal House, P.O. & P.S.-Doranda, District-
     Ranchi.
2. Rajendra Institute of Medical Science (in short RIMS),
     P.O. & P.S.-Bariatu, District-Ranchi.
3. Director, Rajendra Institute of Medical Science (RIMS),
     P.O. & P.S.-Bariatu, District-Ranchi.    .....   Respondents
                        ---------
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
                        ---------
For the Petitioner   : Mr. Anil Kumar Sinha, Sr. Advocate
For the Respondents : Mr. K.K. Singh, S.C.VI
For the RIMS         : Dr. Ashok Kumar Singh, Advocate
                        ---------
                   JUDGEMENT

C.A.V. On 15.07.2021 Delivered on 02/09/2021.

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. 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.

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. 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. 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.

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. 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. 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- jsthMsVa dk in 3 o"kksZ ds fy, VsU;ksj in gksxk A"

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. 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 %&¼1½¼i.½ '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'kalkvksa ds vk/kkj ij 'kklh ifj"kn }kjk dh tk;sxhA ,slh lHkh fu;qfDr;kWa lafonk ds vk/kkj ij Hkh fo'ks"k lsok&"'krZ fu/kkZj.k dj dh tk ldsxhA ¼ii½ 'kS+{kf.kd laoxZ ds lHkh inks ads 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 ikzsUufr fu;ekoyh fjEl vf/kfu;e] 2002 esa 'kSf{kf.kd laoxZ dh fu;qfDr ,oa izksUufr ds laca/k esa nks fHkUu ckrs of.kZr 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. 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.

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. 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. 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. 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. 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.

(Deepak Roshan, J.)

Jharkhand High Court Dated: 02/09/2021 S.M./Amardeep/ AFR