Suraj Bhan vs A.I.I.M.S. And Anr.
2007 Latest Caselaw 1897 Del

JUDGMENT

Hima Kohli, J.

1. In the present writ petition, the petitioner has assailed a Memorandum dated 29th May, 1997 issued by respondent No.1, the All India Institute of Medical Sciences, rejecting the claim of the petitioner for being promoted to the post of Laboratory Technician and further for directions to respondent No.1 to send the petitioner for In-Service Training and to promote/appoint him to the post of Laboratory Technician from the date of his entitlement.

2. In a nutshell, the facts of the case are that on 10th December, 1988, the petitioner was appointed as a Laboratory Attendant in respondent No.1. In May 1994, he was promoted/appointed to the post of Laboratory Attendant Grade II. The Recruitment Rules for Laboratory Attendant required the qualification of Matriculation with Science as a subject. As the petitioner had passed the higher secondary examination with non-science subjects, he enrolled himself to take Class X examinations in science subject with Janaki Samarak Subhash Ji Vidhyalaya Centre, New Delhi and he was issued a certificate dated 26th December, 1995 by the aforementioned institution. The main grievance of the petitioner is that despite the fact that he possesses the necessary qualifications for being promoted from the post of Laboratory Attendant to the post of Laboratory Technician, he has now been so promoted by the respondent No.1.

3. Respondent No.1 while issuing the impugned Memorandum dated 29th May, 1997 stated that the aforesaid institute was not listed in the accredited Boards/Institutions in the country and having not been granted recognition, the certificate issued by the Board of Adult Education and Training could not be taken into consideration, while considering the case of the petitioner for promotion to the post of Laboratory Technician. A reference was made by the respondent No.1 to the Ministry of Health and Family Welfare on 26th May, 1997 for further confirmation on the matters in issue in the aforesaid Memorandum and accordingly the petitioner was informed that at present, he could not be considered eligible for promotion to the post of Laboratory Technician till appropriate confirmation is received.

4. It is pertinent to note that at the time of institution of the writ petition, the petitioner had only imp leaded respondent No.1 in the array of respondents with the grievance that the respondent No.1 was discriminating against the petitioner vis-a-vis other employees in the matter of promotion and that despite the fact that respondent No.1 had held out to the petitioner that if he obtained the requisite qualifications he would be promoted/appointed to the post of Laboratory Technician, it had backed out from the said assurance, which was not permissible. The petitioner also relied on an Office Memorandum dated 12th December, 1988 purportedly issued by the Government of India, Ministry of Human Resource Development, Department of Education to the effect that the Board of Adult Education and Training was a recognized institution and its certificates were equivalent to 10+2 examination certificates issued by the CBSE, Delhi.

5. In the light of the stand taken by the respondent No. 1 in its reply, the petitioner filed an application for impleading Union of India, through Secretary, Ministry of Human Resource Development, as the second respondent, which was duly allowed. Respondent No.2 filed a detailed affidavit stating inter alia that the Office Memorandum dated 12th December, 1988 issued by the Education Officer, Ministry of Human Resource Development, Department of Education, New Delhi was got clarified from Mr.L.Parmal, Assistant Education Officer, the purported signatory of the aforesaid Office Memorandum, who informed respondent No.2 that the said document was a forged one and he had never issued any such letter recognizing the above Board. Subsequently, respondent No.2 issued an Office Memorandum dated 18th August, 1989 to all the Ministries/Departments of the Government stating that the said Board and the certificates issued by it were not recognized for any purpose whatsoever by respondent No.2, as also by the Delhi Administration. It is pertinent to note that letters dated 19th September, 1996 and 24th February, 1997 to the said effect were also issued by respondent No.2 to respondent No.1, informing it that as per the information received from the Association of Indian Universities (AIU) New Delhi, the Board of Adult Education and Training, New Delhi is not listed in the accredited Boards/Institutions in the country and therefore the question of recognition/equivalence of its examinations/certificates did not arise.

6. Counsel for respondent No.1 stated that upon receipt of the aforesaid letters, the respondent issued a circular dated 1st December, 1997 informing all the incumbents to whom the benefit was given in respect of the Matriculation certificate issued by the said Board to complete the Matriculation within a stipulated period, failing which necessary action would be taken against them. It was further stated that during the pendency of the writ petition, the petitioner had been promoted to the post of Laboratory Attendant Grade I vide Memorandum dated 4th September, 1997, as per the Recruitment Rules.

7. On merits, it was stated that the respondent No.1 with the object of providing more promotional avenues and bringing uniformity in the cadre, merged the post of `Laboratory Attendants' and `Laboratory Assistants' as that of `Laboratory Attendants' Grade I, II and III with effect from 1st March, 1992, as a result of which the post of Laboratory Assistant was abolished. For providing better promotional avenues, a one time arrangement was made by respondent No.1 whereby all the Laboratory Attendants/Laboratory Assistants who were Matriculates with science as a subject, were promoted to the post of Laboratory Technician in the years 1993-94 and were sent for In-Service Training. The successful candidates were thereafter appointed as Laboratory Technicians as a one time arrangement. It was stated that the petitioner was not found eligible for being considered for promotion during the period 1993-94 which fact is borne out by the petitioner's own admission, since he completed his alleged matriculation in the year 1995 only.

8. In rebuttal to the arguments advanced by the respondents, counsel for the petitioner referred to the affidavit filed by the petitioner in reply to the additional affidavit of respondent No.2, to state that respondent No.1 had adopted a pick and choose policy by promoting many other similarly situated persons who obtained Matriculation certificates from the same institute, but had discriminated against the petitioner. One such example given by the petitioner was that of one Mr.Chander Bhan who the petitioner stated, had also obtained a Matriculation certificate from the said Board of Adult Education and Training and despite the same, respondent No.1 issued a Memorandum calling upon 8 persons, including the said Chander Bhan, to participate in the In- Service Training Programme which was to start from 16th July, 1995.

9. Counsel for respondent No.1 replied to the aforesaid allegation by submitting that after the respondent No.1 was intimated by the respondent No.2 vide its letter dated 24th February, 1997, about the aforesaid institution not being an accredited one for conferring degrees, it has not granted any relief to any incumbent. It was further urged on behalf of respondent No.1 that the entire case of the petitioner stood demolished in view of the averments made by respondent No.2 to the effect that the Office Memorandum dated 12th December, 1988 was a forged document and the petitioner could not claim any benefit or relief on the basis of the said forged document. It was argued that Article 14 of the Constitution of India is a positive concept and cannot be used in a negative manner by the petitioner by seeking a mandate to respondent No.1 calling upon it to act on a forged document merely because some other individuals had taken the benefit of the said forged document prior to issuance of the letters dated 19th September, 1996 and 24th February, 1997. In support of his contention that guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner by perpetrating an illegality or irregularity in favor of any individual, reliance was placed on the following judgments:

(i) Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. .

(ii) State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. .

(iii) Union of India and Ors. v. Rakesh Kumar .

10. I have heard the counsels for the parties, perused the relevant documents placed on the record and have given my careful consideration to the rival contentions of the parties.

11. The undisputed position that emerges from the record as also from the arguments advanced by counsels for both the parties is that when the petitioner approached this Court by filing the writ petition, he relied on the Office Memorandum dated 12th December, 1988 purportedly issued by Sh.L.Parmal, Assistant Education Officer, Government of India, Ministry of Human Resource Development, Department of Education. The stand taken by the respondent No.1 in the impugned Office Memorandum dated 29th May, 1997 that the certificate submitted by the petitioner purportedly issued by the Board of Adult Education and Training was not valid as the said Board was not one of the accredited institutions, was put to test by impleading the Union of India, through Secretary, Ministry of Human Resource Development as respondent No.2 in the writ petition. Respondent No.2 also confirmed the said position and placed on record its letters dated 19th September, 1996 as also 24th February, 1997 addressed to respondent No.1 and asserted that in view of the factual position and the aforesaid letters, the question of recognition/equivalence of the examinations/certificates issued by the purported Board of Adult Education and Training, New Delhi, did not arise. In these circumstances, the entire edifice on which the petitioner built his case has fallen to the ground. Thus, it cannot be held that there is any illegality, arbitrariness or perversity on the part of respondent No.1 in issuing the impugned Office Memorandum dated 29th May, 1997 holding the petitioner ineligible for being considered for promotion to the post of Laboratory Technician.

12. The other argument of the petitioner that he had been discriminated against by the respondent No.1 and his reference to the case of Chander Bhan, who was called by respondent No.1 to participate in the In-Service Training Programme as Laboratory Attendant in the course starting from 16th July, 1995 , can also not be of any assistance to the petitioner as it is the petitioner's own case that he wrote to respondent No.1 for the first time on 17th January, 1994 making a request that he may be permitted to take the Matriculation examination afresh so that he could meet the requisite qualifications prescribed for being considered for promotion to the post of Laboratory Technician. After qualifying the Matriculation examination with science subject from the aforesaid institution, the petitioner wrote to the respondent No.1 on 30th October, 1995 requesting it to include his qualification in the service book. By the said time, the In-Service training in respect of the aforesaid Chander Bhan had already started from 16th July, 1995, which is apparent from a perusal of the memo issued by respondent No.1 and enclosed by the petitioner in his reply to the additional affidavit filed by respondent No.2. In any case, the relief sought by the petitioner in the present writ petition is not for setting at naught the benefits claimed by others on the basis of the aforesaid forged document, but for quashing of the impugned Memorandum dated 29th May, 1997 issued by respondent No.1 informing the petitioner that he could not be considered eligible for promotion to the post of Laboratory Technician having obtained the Matriculation Certificate with Science as a subject from an institute which was not listed in the accredited Boards/Institutions in the country.

13. The petitioner has also not been able to show that even after issuance of the letters dated 19th September, 1996 and 24th February, 1997 by respondent No.2, the respondent No.1 continued to grant benefits to other incumbents on the basis of the forged circular. Even if it is assumed that respondent No.1 did grant the benefit on the basis of the forged document to some others, still it cannot take the case of the petitioner any further as it has been held in innumerable judgments that the concept of equality as envisaged under Article 14 of the Constitution of India is a positive concept and cannot be enforced in a negative manner. With regard to the concept of equality, it has also been repeatedly held that the doctrine of discrimination is founded upon existence of an enforceable right and that judicial process cannot be abused by perpetuating illegalities. In this regard, reference may be made to be following judgments, apart from those cited by the counsel for the respondent No.1:

(i) Secretary, Jaipur Development Authority, Jaipur v. Daulta Mal Jain and Ors. .

(ii) State of Haryana and Ors. v. Ram Kumar Mann

14. Relying on a number of its earlier judgments, the Supreme Court in the case of Kameshwar Prasad Singh (supra), held as under:

30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favor of any individual 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 favor of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. New Delhi Municipal Committee held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed: (SCC p. 465, para 9) Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.

Again in Secy., Jaipur Development Authority v. Daulat Mal Jain this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding: (SCC pp. 51-52, para 28) Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents.

31. In State of Haryana v. Ram Kumar Mann this Court observed: (SCC p. 322, para 3) ...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 discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement. The answer is obviously 'No'. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right....

15. Thus, even if it is assumed that respondent No.1 committed an illegality or irregularity in favor of any other incumbent, the petitioner cannot claim entitlement to the same illegality or irregularity on the ground of discrimination. Nor can any concession be granted to the petitioner on the ground of hardship caused to him in the given circumstances. Hence, this Court in exercise of its powers under Article 226 of the Constitution of India cannot be called upon by the petitioner to enforce such a negative claim of equality before law, as the same amounts to directing the respondent No.1 to perpetrate an illegality and act on the basis of a forged document for extending the benefit thereof to the petitioner.

16. For the aforesaid reasons, the writ petition fails and the same is rejected with no order as to costs.