TMI Blog2009 (3) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... tested the writ petition by asserting that the services of the writ petitioners were terminated because their initial appointments were illegal. ld Single Judge relied upon the order passed in CWJC No. 5140 and quashed the termination of the respondents' services with a direction that they be reinstated with consequential benefits. Letters Patent Appeal No. 61 of 2007 filed by the appellant was dismissed by the Division Bench on the ground that similar appeals filed in the cases of Arun Kumar and others and Arjun Chaudhary had already been dismissed. In the opinion of the Division Bench, a different view could not be taken in the case of the respondents because that would give rise to an anomalous situation. HELD THAT:- For ensuring that equality of opportunity in matters relating to employment becomes a reality for all, Parliament enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (`the 1959 Act'). Section 4 of that Act casts a duty on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same. In Union of India and Ors. v. N. Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rined in Articles 14 and 16 and issued directions for treating temporary/ad hoc/daily wage employees at par with regular employees in the matter of payment of salaries etc. In some cases, the schemes framed for regularization of the services of the backdoor entrants were also approved. As a result of this, beneficiaries of spoil system and corruption garnered substantial share of Class III and Class IV posts and thereby caused irreparable damage to the service structure at the lower levels. Those appointed by backdoor methods or as a result of favoritism, nepotism or corruption do not show any commitment to their duty as public servant. Not only this, majority of them are found to be totally incompetent or inefficient. Whether the High Court was justified in directing reinstatement of the respondents with consequential benefits? - HELD THAT:- In view of the contradictory assertions made by the parties on the issue of legality of the respondents' initial appointment, the minimum which the ld Single Judge should have done was to call upon the respondents to produce copies of the advertisement issued by the competent authority and/or requisition sent to the employment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the exercise undertaken by Regional Director for showing that appointments of the respondents were regularized by the local appointments committee on 11.5.1992 was a farce. Therefore, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the ld Single Judge gravely erred by directing their reinstatement with consequential benefits. The issue which remains to be considered is whether the Division Bench of the High Court was justified in refusing to examine legality and legitimacy of the initial appointments of the respondents only on the ground that the State had not challenged the dismissal of Letters Patent Appeals filed in other cases. In our view, the approach adopted by the Division Bench was clearly erroneous. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Director, Animal Husbandry as Secretary and one officer belonging to Scheduled Castes/Scheduled Tribes. 3. By taking advantage of letter dated 4.7.1987, Dr. Darogi Razak, the then Regional Director, Animal Husbandry, Gaya, made a number of appointments on Class III and Class IV posts without issuing any advertisement or sending requisition to the employment exchange and without making selection of any sort. The respondents were also beneficiaries of the largess doled out by Dr. Darogi Razak in violation of instructions issued by the Chief Secretary and the Animal Husbandry Department. They were appointed as Class IV employees on 9.10.1991 (respondent No. 1), 24.10.1991 (respondent No. 2) and 27.10.1991 (respondent Nos. 3, 4 and 5). Copies of the orders of appointment of the respondents have been placed on record along with affidavit dated 8.9.2008 of Dr. Ram Narayan Singh, Joint Director (HQ), Animal Husbandry, Animal Husbandry and Fisheries Resources Department, Bihar. For the sake of reference, the relevant extracts of English translation of order passed in the case of respondent No. 1 - Upendra Narayan Singh are reproduced below: OFFICE OF REGIONAL DIRECTOR, ANIM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents pleaded that the action taken against them was vitiated due to violation of the rules of natural justice and arbitrary exercise of power because the concerned authority did not give them the effective opportunity of hearing and the instruction contained in memorandum dated 16.4.1996 could not have been applied to their case because they had been appointed prior to cut off date specified therein i.e. 28.10.1991. The appellant herein contested the writ petition by asserting that the services of the writ petitioners were terminated because their initial appointments were illegal. 6. The learned Single Judge relied upon the order passed in CWJC No. 5140 of 1998 and quashed the termination of the respondents' services with a direction that they be reinstated with consequential benefits. Letters Patent Appeal No. 61 of 2007 filed by the appellant was dismissed by the Division Bench on the ground that similar appeals filed in the cases of Arun Kumar and others and Arjun Chaudhary had already been dismissed. In the opinion of the Division Bench, a different view could not be taken in the case of the respondents because that would give rise to an anomalous situation. 7. Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 9. For achieving various goals set out in the preamble, framers of the Constitution included a set of provisions in Part III with the title Fundamental Rights and another set of provisions in Part IV with the title Directive Principles of State Policy . The provisions contained in Part III of the Constitution by and large contain negative injunctions against State's interference with the fundamental rights of individuals and group of individuals and also provide for remedy against violation of such rights by direct access to the highest Court of the country. Part IV enumerates State's obligation to make policies and enact laws for ensuring that weaker segments (have nots) of the society are provided with opportunities to come up to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive drafts. When the Sub-Committee on Fundamental Rights discussed the subject, Shri K.T. Shah pressed his view that the Constitution should guarantee non- discrimination, not only in public employment but also in employment in any enterprise aided or assisted by the State . However, his suggestion was not accepted by the Sub-Committee. The issue was then debated in the context of demand for incorporation of a clause enabling the State to provide for reservation in favour of backward classes, etc. and ultimately the draft was adopted (The Framing of India's Constitution, Vol. II, edited by B. Shiva Rao). Clauses (4A) and (4B) were added to Article 16 by the Constitution (77th Amendment) Act, 1995. Article 16 in its present form reads as under: 16. Equality of opportunity in matters of public employment . - (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y any person equality before the law or equal protection of the laws within the territory of India. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen shall be ineligible for or discriminated against irrespective of any employment or office under the State on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Though, enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., a way of life , and it must not be subjected to a narrow pedantic or lexico ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of opportunity and employment in public offices. The words `employment' or `appointment' cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of recruitment, we think that any restriction that employment in government departments should be through the medium of employment exchanges does not offend Articles 14 and 16 of the Constitution. In Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Ors. (1997)ILLJ56SC , a three-Judge Bench while reiterating that the requisitioning authority/establishment must send intimation to the employment exchange and the latter should sponsor the names of candidates, observed: ...It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , employment news bulletins, get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the concerned employment exchange and/or who may apply pursuant to the advertisement published in the newspapers or announcements made on radio/television. 17. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoil system which prevailed in America in 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together. SPOIL SYSTEM - A BIRD'S EYE VIEW: 18. In 17th and 18th centuries a peculiar system of employment prevailed in America. Under that system, leaders of the political party which came to power considered it to be their prerogative to appoint their faithful follower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis for appointments. In 1881, a spurned office-seeker shot and killed President James A. Garfield. His death provoked further public outcry for civil service reform and paved way for passage of a bill introduced by Sen. George H. Pendleton of Ohio. His bill became the Civil Service Act of 1883 and re-established the Civil Service Commission. The Act rendered it unlawful to fill various federal offices by the spoil system. Since then, much has been done to avoid the evils of the system. Federal civil service legislation has been greatly expanded. Many municipalities and states have made training and experience as a condition precedent for appointment to public offices. In the territories of India ruled by Britishers also a large chunk of jobs went to the faithfuls of Britishers who were considered fit for serving British interest. 19. With a view to insulate the public employment apparatus in independent India from the virus of spoil system, the framers of the Constitution not only made equal opportunity in the matter of public employment as an integral part of the fundamental rights guaranteed to every citizen but also enacted a separate part, i.e., Part XIV with the title S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State, on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award. This clause also casts a duty on the Public Service Commissions to advise on any matter referred to them by the President or the Governor. 20. However, the hope and expectation of the framers of the Constitution that after independence every citizen will get equal opportunity in the matter of employment or appointment to any office under the State and members of civil services would remain committed to the Constitution and honestly serve the people of this country have been belied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in Articles 14 and 16 and issued directions for treating temporary/ad hoc/daily wage employees at par with regular employees in the matter of payment of salaries etc. The schemes framed by the Governments and public bodies for regularization of illegally appointed temporary/ad hoc/daily wage/casual employees got approval of the Courts. In some cases, the Courts also directed the State and its instrumentalities/agencies to frame schemes for regularization of the services of such employees. In State of Haryana v. Piara Singh (1993)IILLJ937SC , this Court reiterated that appointment to the public posts should ordinarily be made by regular recruitment through the prescribed agency and that even where ad hoc or temporary employment is necessitated on account of the exigencies of administration, the candidate should be drawn from the employment exchange and that if no candidate is available or sponsored by the employment exchange, some method consistent with the requirements of Article 14 of the Constitution should be followed by publishing notice in appropriate manner calling for applications and all those who apply in response there to should be considered fairly, but proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a view to give the benefit of regularization knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularized. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such backdoor entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularization has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them. (emphasis added) 24. Notwithstanding the critical observations made in Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi and Ors. (supra) and State of U.P. and Ors. v. U.P. State Law Officers Association and Ors. (supra), illegal employment market continued to grow in the country and those entrusted with the power of making appointment and those who could pull strings in the corridors of power manipulated the system to ensure that their favourites get employment in complete and contemptuous disregard of the equality clause enshrined in Article 16 of the Constitution and Section 4 of the 1959 Act. However, the Courts gradually realized that unwarranted sympathy shown to the progenies of spoil system has eaten into the vitals of service structure of the State and public bodies and this is the reason why relief of reinstatement and/or regularization of service has been denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c/temporary/daily wage employees and unequivocally ruled that such appointees are not entitled to claim regularization of service as of right. After taking cognizance of large scale irregularities committed in appointment at the lower rungs of the services and noticing several earlier decisions, the Constitution Bench observed: The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench. While repelling the argument based on equity, the Constitution Bench observed: ...But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognised and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme. What is sought to be pitted against this approach, is the so-called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as litigious employment in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the backdoor. The obligation cast on the State under Article 39(a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen Regional Director, Gaya made large number of illegal appointments and this fact was established in the enquiry got conducted by the department. However, the Division Bench did not deal with the issues raised in the appeal and dismissed the same by making reference to the orders passed in LPA No. 325/2000, Civil Review No. 279/2000 and LPA No. 47/2005 and observing that taking different view in the case of the respondents could lead to an anomalous position inasmuch as some persons would get back into service on the strength of the court's order while others will be thrown out. 30. At the hearing of this appeal, we asked the learned senior counsel appearing for the respondents to show that before appointing his clients on ad hoc basis, the then Regional Director, Gaya had issued an advertisement and/or sent requisition to the employment exchange and made selection after considering competing claims of the eligible candidates but he could not draw our attention to any document from which it could be inferred that the respondents were appointed after advertising the posts or by adopting some other method which could enable other eligible persons to at least apply for being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Animal Husbandy is only competent to make appointments to such posts. Charge No. 3: You adopted the practice of appointment of four or less than four persons at one go for which it is not necessary to give advertisement in the newspapers, but as per Roster, requisition to call for names from Employment Exchange is mandatory. However, you have not complied with this rule. Charge No. 4: You also appointed persons in excess of sanctioned strength. Charge No. 5: The relevant records regarding appointments are not available in the office. In this connection, this fact has come to notice that these records have been removed/misplaced at your level. The Officer who conducted the enquiry considered the documents produced by the departmental representative and the charged officer, arguments advanced by them, analyzed the entire evidence and concluded that charge No. 1 is partly proved, charges No. 2 and 3 are fully proved, charge No. 4 is not proved and charge No. 5 is partly proved. The analysis of charges No. 1 to 3 and charge No. 5 made by the Inquiry Officer is worth noticing. The same reads as under: Charges No. 1 to 3: In the analyses of three charges under considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Mukhya (Hq.) and sometime putting Camp and sometime by both Camp and Confidential contradictory and un-matched Nos. No satisfactory reply to this is found anywhere during the course of hearing. In some cases, it also appears to be very unnatural that charged officer was Regional Director and his headquarter was also Gaya but showing office of Animal Husbandry Officer of Sadar Sub. Division, Gaya as Camp , letters were got issued from there. Any need of getting issued letters using Camp is not understandable. When the office of charged officer was itself in Gaya, and when any letter whatsoever was to be got issued, there would have been no difficulty for him to get it issued from his own office itself. Merely for the reason that he is not sitting in Officer chamber and in fact is present in the officer of Sub Divisional Animal Husbandry Officer , justification of issue of letter from camp is difficult to understand. Regarding letters issued from Camp , this is also another issue for consideration that such letters are normally issued under such circumstances wherein it is necessary to issue the letter immediately. Any such emergent situation could not have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he charged officer has not followed the procedure in appointment. Charge No. (5) : Here position is not such in which any file related to appointment was ever seen by anyone. No one has made such admission in his statement. The appointment letters issued by the charged officer himself do not bear any File No. It is correct for the charged officer to state that it is the duty of the office and concerned clerk to maintain File Record Register etc. If charged officer take shelter of this technical argument, then he shall also be bound to take this responsibility that he should have seen that other files submitted to him with other documents related to appointment bear file No. and that at the time of issuing fair copy of letters, File Nos. are mentioned on the letters issued from that file. Normally, an officer who depends and rely on such defence is also supposed to take much more care and vigil. During the course of analyses under charge No. 1 to 3, many such letters have been referred in which some unnatural type of Issue Nos. have been given. There are number of such letters on which Issue No. Con. has been given. The charged officer cannot naturally put liability on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been maintained anywhere. As such, there is also no need to remove or take away any document. It is merely a possibility for which charged officer would have needed cooperation and participation of other persons to whom employees were being sent after appointment. It is not possible to finally decide from the evidences produced in this departmental inquiry that out of above three or fourth possibilities, which one is correct. One thing is though clear that charged officer had not left any of the papers related to appointment in his office and the manner in which he adopted the working system of appointments, this strong possibility arises that even if documents were maintained, these were not maintained at office level. In such a case, the charged officer shall himself be responsible for non-availability of documents, irrespective of following the method of removing those documents or not maintaining any documents. As such, this charge is held to be proved to this extent. (emphasis added) 32. The so-called regularization of the services of the respondents on which heavy reliance was placed by the learned senior counsel appearing on their behalf in the context of avermen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench was clearly erroneous. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order Chandigarh Administration and Anr. v. Jagjit Singh and Anr . [1995]1SCR126 ; Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors. (1997)1SCC35 ; Union of India (Railway Board) and Ors. v. J.V. Subhaiah and Ors . AIR1996SC2890a ; Gursharan Singh v. New Delhi Municipal Committee [1996]1SCR1154 ; State of Haryana v. Ram Kumar Mann (1997)1SCC35 ; Faridabad CT Scan Centre v. D.G. Health Services and Ors. 1997ECR801(SC) ; Style (Dress Land) v. Union Territory, Chandigarh and Anr. AIR1999SC3678 and State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. AIR2000SC2306 ; Union of India and Anr. v. International Tradi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent Authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent Authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law--indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law--but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent Authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India (Railway Board) and Ors. v. J.V. Subhaiah and Ors . (supra), a three-Judge Bench held as under: The principle of equality enshrined under Article 14 of the Constitution, as contended for the respondents, does not apply since we have already held that the order of the CAT, Madras Bench is clearly unsustainable in law and illegal which can never form basis to hold that the other employees are invidiously discriminated offending Article 14. The employees covered by the order of the Madras Bench may be dealt with by the Railway Administration appropriately but that could not form foundation to plead discrimination violating Article 14 of the Constitution. In Gursharan Singh v. New Delhi Municipal Committee (supra), this Court declined to invoke Article 14 of the Constitution for giving relief to the appellant and observed: There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. (emphasis added) In State of Haryana v. Ram Kumar Mann (supra), this Court ruled that the High Court was not right in issuing a mandamus to the State to allow the petitioner to withdraw his resignation merely because in another case such a course as adopted. Some of the observations made in that case, which are quite instructive, are extracted below: The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discriminatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts in Jagjit Singh's case and Gursharan Singh's case, observed: When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law. 36. In view of the above stated legal position, the order passed by the Division Bench dismissing the Letters Patent Appeal cannot be sustained. 37. In the result, the appeal is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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