WP(C)/5412/2012
2025 Latest Caselaw 8169 Gua

Gauhati High Court

WP(C)/5412/2012 on 30 October, 2025

 GAHC010122702012




                                          2025:GAU-AS:14785


              IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)



             WRIT PETITION (CIVIL) NO.5412/2012


                          No. 9585333 HC (GD)
                            Shiv Narayan,
                          Training Center,
                          Sashatra Seema Bal, Salonibari,
                          P/O - Salonibari,
                          District - Sonitpur, Assam.


                                            .......Petitioner

                                 -Versus-

                         1. Union of India, Represented by
                            Secretary, Government of India,
                            Ministry of Home Affairs,
                            New Delhi.

                         2. The Director General,
                            Sashatra Seema Bal,
                            East Block- V, R.K. Puram,
                            New Delhi.

                         3. Assistant Director
                            (Personnel-II)
                             Force Head Quarter, Sashatra
                             Seema Bal, New Delhi.

                                         .......Respondents



                                                  Page 1 of 10
                         -BEFORE-

      HON'BLE MR. JUSTICE KAUSHIK GOSWAMI

For the Petitioner(s)   :Mr. P. Mahanta , Advocate.

For the Respondent(s)   :Ms. B. Sarma, learned CGC,
                         for the respondent Nos.1. 2 and 3.



Date of Hearing         :30.10.2025.

Date of Judgment        :30.10.2025.



             JUDGMENT & ORDER (ORAL)

Heard Mr. P. Mahanta, learned counsel appearing for the petitioner. Also heard Ms. B. Sarma, learned CGC appearing for the respondent Nos. 1, 2 and 3.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner is, inter-alia, assailing the action of the respondent authorities in not granting promotion to the petitioner to the post of Sub-Inspector (General Duty) despite the recommendation of the departmental promotion committee (DPC) in his favour, and promoting the respondent No. 4 to the said post by order dated 16.05.2011, who is junior to the petitioner.

3. The brief facts of the case are that the petitioner was initially working as Head Constable (General Duty) in the Sashatra Seema Bal from 05.08.1995 and thereafter, he has been employed in the armed force.

4. It is the further case of the petitioner that in the draft Seniority List of the Head Constable (General Duty) published by the respondent No. 3 vide Office Memorandum dated 20.01.2011, the petitioner's name appeared in serial no. 297, whereas the respondent No. 4's name appeared at serial no. 298. It is pertinent that the petitioner was promoted as Naik (Nk) (General Duty) on 29.06.2002, whereas the respondent No. 4 was promoted to the said rank on 13.07.2002. Thereafter, the petitioner was promoted to the rank of Head Constable (General Duty) on 05.09.2005. Thereafter, the respondent No. 4 was further promoted to the rank of Sub-Inspector (General Duty) by order dated 16.05.2011, whereas the petitioner was promoted to the rank of Assistant Sub- Inspector (General Duty) on 26.06.2012, giving effect from 25.06.2012. The grievance of the petitioner is that despite the recommendation of the DPC to promote the petitioner to the post of Sub Inspector (General Duty), the respondent No. 4 who is junior to him has been promoted ignoring the case of the petitioner. The further grievance of the petitioner is that the recommendation of the DPC in his favour ought to have been accepted by the respondent authorities and that the denial of promotion in his case amounts to arbitrary and discriminatory treatment, particularly when, according to the petitioner, in the case of two similarly situated persons, the respondents had granted relaxation in the prescribed qualifying service. Hence, the present writ petition has been filed.

5. Mr. P. Mahanta, learned counsel appearing for the petitioner, submits that since the DPC recommended the case of the petitioner for promotion, the government ought to have relaxed the statutory period of length of service. He further submits that since in the case of two similarly situated persons, the government has relaxed the said statutory minimum period of length of service, non- relaxation in the case of the petitioner amounts to discrimination, and hence Article 16(1) of the Constitution of India stands contravened. He accordingly submits that since the petitioner's claim for the subject promotion has not been considered fairly in an equitable manner, the action of the government for non-relaxation of the said statutory period of length of service warrants interference from this court under the extraordinary writ jurisdiction. In support of his submission that the petitioner has been discriminated, he relies upon the decision of the Apex Court in the case of Union of India and others Vs. Munshi Ram in Civil Appeal No. 2811/2022 (Arising from S.L.P (Civil) No. 6526/2022 @ Diary No. 27620/2020).

6. Per contra, Ms. B. Sarma, learned CGC appearing for the respondent Nos. 1, 2 and 3, submits that as per the relevant Recruitment Rules governing the promotional post of Sub-Inspector (General Duty), a minimum of 18 years of regular service in the feeder cadre is an essential eligibility condition. The petitioner, as of the date of consideration by the DPC, had admittedly completed only 15 years and 6

months of regular service and therefore did not fulfill the eligibility criteria. She further submits that there is no provision under the Recruitment Rules empowering the Government to relax the prescribed length of service, and hence the petitioner was rightly found ineligible.

7. I have heard the learned counsel appearing for the parties and also have perused the material on record. I have also duly considered the case laws cited at the bar.

8. The core controversy arising in the writ petition is whether the petitioner is qualified for promotion to the post of Sub-Inspector (General Duty). This court finds that the facts are not in dispute. Apt at the outset before entering into the merit of the controversy, to refer to the eligibility criteria for promotion of HC(GD) to the rank of Sub- Inspector General Duty, which is provided under GSR 845 (E) of the Recruitment Rules, 2009 dated 25/11/2009, which reads as under:-

"(C) That, the eligibility criteria for promotion of HC(GD) to the rank of SI(GD) was notified vide GSR 845 (E) recruitment Rules 2009 dated 25/11/2009 are as under :-

From amongst Head Constable (GD) of SSB with file years of regular service in the grade together with total 18 years of service and processing the following qualifications:-

(i) Matriculation or 10th class pass from a recognized board or departmental 1st class education examination.

(ii) Must have qualified the pre-promotional courses as prescribed by the DG SSB from time to time."

9. Reading the aforesaid, it appears that the minimum length of service prescribed for Head Constable (General Duty) of SSB is 5 years of regular service in the grade together with total 18 years of service.

10. The petitioner admittedly, at the relevant time, had not completed the minimum 18 years of regular service as prescribed under the above referred Recruitment Rules. The recommendation of the DPC, even if made, could not override the statutory Recruitment Rules. The settled legal position is that eligibility conditions prescribed under statutory rules cannot be relaxed or ignored unless specific power of relaxation is conferred under those rules.

11. In the present case, no such relaxation clause exists in the relevant Recruitment Rules. The contention of the petitioner that, in the past, relaxation has been granted in respect of two other employees cannot come to his aid. It is trite that illegality or irregularity, if committed in the past, cannot be perpetuated on the ground of parity. Article 14 of the Constitution does not envisage negative equality.

12. It is thus apparent from the above at the cost of repetition that that the petitioner does not have the statutory minimum period of length of service for consideration for promotion to the post of Sub-Inspector (General Duty).

13. The Apex Court has consistently held that a wrong decision in one case does not confer a right on another person to claim a similar wrong. Reference is made in this regard in the case of Union of India v. International Trading Co., reported in (2003) 5 SCC 437, wherein the Apex Court has held that Article 14 does not envy such negative equality. Merely because some other people have been granted a benefit wrongly, a similar benefit cannot be claimed by another person. Paragraph 22 of the aforesaid judgment is reproduced hereunder for ready reference:

"22. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed."

14. Reference is also made in the case of Chandigarh Administration and Anr. Vs. Jagjit Singh reported in (1995) 1 SCC 745, wherein the Apex Court has held that equality under Article 14 cannot be claimed for repeating an illegality or irregularity committed in another case. Paragraph 8 of the aforesaid judgment is reproduced hereunder for ready reference:

"8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come

across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-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 one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of

the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations- would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises.)"

15. Reading of the aforesaid judgment, it is clear that even if any relaxation was granted earlier contrary to the rules, the same cannot form the basis of a legitimate claim for the petitioner.

16. In view of the above discussion, the claim of the petitioner for promotion cannot be accepted, as he admittedly did not fulfill the requisite eligibility condition of minimum regular service prescribed under the Recruitment Rules, and no relaxation is permissible in law.

17. As regards the decision of the Apex Court cited by the petitioner, the same is not applicable to the context of the facts of the instant case inasmuch as this court does not find that the petitioner has in any manner been treated discriminately by the respondent in not considering his case for promotion to the subject post, as he admittedly does not have the requisite statutory minimum period of length of service under the rules.

18. Accordingly, the writ petition fails and is dismissed. No order as to costs.

JUDGE

Comparing Assistant