Jharkhand High Court
The State Of Jharkhand vs Ashok Kumar Sinha on 3 July, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.365 of 2020
With
I.A. No.6748 of 2021
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1. The State of Jharkhand.
2. The Secretary, Building Construction Department, Government of
Jharkhand officiating from Project Bhawan, Post Dhurwa, Police
Station-Dhurwa, District-Ranchi.
3. The Engineer-in-Chief, Building Construction Department,
Government of Jharkhand Officiating from Project Bhawan, Post
Dhurwa, Police Station, Dhurwa, District-Ranchi.
4. The Chief Engineer, Building Construction Department,
Government of Jharkhand officiating from Project Bhawan, Post
Dhurwa, Police Station-Dhurwa, District-Ranchi.
5. The Superintending Engineer, Building Circle, Hazaribagh
officiating from Hazaribagh, Post Hazaribagh, Police Station
Sadar, Dist.-Hazaribagh. .... .... Appellants
Versus
Ashok Kumar Sinha, Son of Late Mehila Singh, presently residing at
Suresh Colony, Hazaribagh, Post-Hazaribagh, Police Station-Sadar,
District Hazaribagh .... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the State : Mrs. Vandana Singh, Sr. S.C.-III
For the Respondent : Mrs. Ritu Kumar, Advocate
: Mr. Samavesh Bhanj Deo, Advocate
------
11/Dated: 03.07.2023
Per Sujit Narayan Prasad, J.
The instant intra-court appeal preferred by the State of
Jharkhand under Clause-10 of Letters Patent is directed against the
order/judgment dated 19.02.2020 passed by the learned Single
Judge of this Court in W.P.(S) No.1606 of 2010, whereby and
whereunder, the decision was taken in Memo No.666 dated
22.3.2010 issued under the signature of the Superintending
Engineer, Building Circle, Hazaribagh, by which, the decision taken,
was communicated of recall of benefits of 1st Time Bound Promotion/
1st and 2nd Assured Career Progression Scheme granted to the writ
petitioner with effect from 03.09.1983 and 09.08.1999 on the ground
that the writ petitioner has not passed the departmental accounts
examination.
2. The brief facts of the case, as per the pleading made in the writ
petition, required to be enumerated, are as hereunder:-
It is the case of the writ petitioner that he was appointed to the
post of Correspondence Clerk on ad hoc basis on 03.09.1973.
However, he was appointed on regular basis in accordance with law
against a sanctioned vacant post of Correspondence Clerk vide
office order as contained in Memo No.348 dated 15.10.1973. He
worked to the satisfaction of all concerned and no complaint of any
kind was ever made against him from any corner. No departmental
proceeding was ever initiated against the writ petitioner or any
criminal cases were ever lodged against him. The writ petitioner
along with others was granted regular promotion vide office order as
contained in Memo No.431 dated 24.3.1985. In pursuance to an
order passed by the Hon'ble Patna High Court, Ranchi Bench in
C.W.J.C. No.241 of 1990 dated 30.7.1998, the regular promotion
granted to the writ petitioner was cancelled vide office order as
contained in Memo No.525 dated 05.07.1999. However, he was
granted the 1st Time Bound Promotion with effect from 03.09.1983 in
accordance with law on completion of ten years of successful
service. In the meantime, the Resolution No.660 dated 08.02.1999
was implemented with effect from 01.01.1996 and as per the said
Resolution, the Time Bound Promotion granted to the employees
were withdrawn and they were placed in the basic scale and as
such, the benefit of the 1st Time Bound Promotion granted to the
writ petitioner with effect from 03.09.1983 had also been withdrawn.
After creation of Jharkhand, the State of Jharkhand introduced
the scheme of Assured Progression Scheme vide notification dated
14.08.2002 in terms thereof, if an incumbent not promoted within the
period of 12 years, would be granted one higher scale of pay and
another upon 24 years, if he has not been promoted.
In pursuance to the notification dated 14.08.2002, a meeting of
the Circle Establishment-cum-Screening Committee was held on
18.09.2003 and thereafter, in pursuance to the decision taken in the
said meeting, the writ petitioner was granted benefit of 1st and 2nd
Assured Career Progression Scheme w.e.f. 09.08.1989 vide office
order contained in Memo No.2392 dated 12.11.2003.
In pursuance to the said decision, the pay scale of the writ
petitioner was revised vide office order contained in Memo No.2750
dated 27.12.2003. Another meeting of the Circle Establishment-cum-
Screening Committee was held on 13.08.2005 and there was some
rectification in the decision communicated vide office order contained
in Memo No.2392 dated 12.11.2003 with regard to pay scale and the
same was circulated vide office order contained in Memo No.972
dated 19.08.2005.
As per Rule 157(3)(G) of the Bihar Board's Miscellaneous
Rules, departmental examination has to be held twice a year on the
2nd Monday of March and September every year or on such other
fixed by the Board but it is not being conducted twice in a year, rather
it is not even being conducted every year. However, as and when the
departmental examination was conducted, the petitioner appeared
and he had cleared 1st (final) and 2nd paper (preliminary) on
29.10.1990.
It is the further case that the writ petitioner has received a show
cause notice contained in Memo No.153 dated 22.01.2010 issued
under the signature of the Superintending Engineer, Building Circle,
Hazaribagh by which he was directed to file response to the same as
to why the benefit of time bound promotion/Assured Career
Progression Scheme granted to him without passing the Accounts
examination be not cancelled.
The petitioner, thereafter, immediately filed reply to the show
cause on 11.02.2010 bringing the entire facts of grant of benefit of
time bound promotion/Assured Career Progression Scheme to him
before the Superintending Engineer, Building Circle, Hazaribagh.
The petitioner received another show cause notice contained in
Memo No.364 dated 17.02.2010 issued under the signature of
Superintending Engineer, Building Circle, Hazaribagh but the
petitioner once again filed detailed reply to the show cause on
25.02.2010.
It is the further case that the respondents did not consider the
reply submitted by the writ petitioner and issued an office order
contained in Memo No.666 dated 22.03.2010 under the signature of
the Superintending Engineer, Building Circle, Hazaribagh
communicating the petitioner that a decision has been taken that the
benefits of 1st Time Bound Promotion/1st and 2nd Assured Career
Progression Scheme granted to him w.e.f. 03.09.1983 and
09.08.1999 has been cancelled since it was granted without passing
the Accounts examination and it was further directed to recover the
excess amount paid to the writ petitioner from his
salary/gratuity/leave encashment.
Being aggrieved with the aforesaid order, the writ petitioner
has filed writ petition being W.P.(S) No.1606 of 2010, but, the learned
Single Judge, after taking into consideration the aforesaid facts, has
quashed the impugned order as contained in Memo No.666 dated
22.03.2010 passed by the authority concerned, against which, the
present intra-court appeal has been preferred.
3. It appears from the fact as referred herein based upon the
pleading made in the writ petition that the writ petitioner was working
under the Building Construction Department and while posted in the
Building Circle, Hazaribagh, a decision as contained in Memo
No.666 dated 22.03.2010 was communicated, by which, the benefit
of upgradation granted w.e.f. 03.09.1983 and 09.08.1999 has been
cancelled on the ground that the writ petitioner has not passed the
departmental accounts examination.
4. Mrs. Vandana Singh, learned Sr. S.C.-III appearing for the
appellant-State has submitted that the passing of the departmental
examination is mandatory in view of the provision as contained under
Rule 157(3)(J) of the Bihar Board's Miscellaneous Rules, 1958,
wherein, the specific stipulation has been made that before grant of
promotion to the Higher Post, passing of the departmental accounts
examination is necessary and she has referred the condition
stipulated under Clause 3 of the resolution no.5207 dated
14.08.2002, wherein, the conscious decision was taken by the State
that the eligibility which is required for cadre promotion, is also to be
possessed by one or the other employees for the purpose of
consideration of grant of upgradation in pay scale under the Assured
Career Progression Scheme.
It has been contended that the issue of passing of
departmental accounts examination has been held to be mandatory
by the Full Bench of the Patna High Court rendered in the case of
Maheshwar Prasad Singh Vrs. State of Bihar, reported in (2000) 4
PLJR 262.
The contention, on the basis of the aforesaid premise, has
been made that the learned Single Judge has not considered the
aforesaid aspects of the matter, therefore, the order passed by the
learned Single Judge suffers from infirmity and as such, not
sustainable in the eyes of law.
5. Per contra, Mr. Samavesh Bhanj Deo, learned counsel
appearing for the respondent-writ petitioner has defended the order
passed by the learned Single Judge on the ground that the aforesaid
benefit of upgradation since was granted way back, i.e., more than
the period of 20 long years, cannot be allowed to be withdrawn that
to without following the principle of natural justice.
It has been submitted that the learned Single Judge by taking
into consideration the aforesaid fact has held the decision so taken
by the authority concerned to be not sustainable and accordingly,
quashed and set aside, therefore, the order passed by the learned
Single Judge, cannot be said to suffer from an error.
6. We have heard the learned counsel for the parties, perused the
documents available on record as also considered the finding
recorded by the learned Single Judge in the impugned order.
7. At the outset, it has been submitted by the learned counsel
appearing for the appellant-State that the part of the order by which
the decision taken by the authority concerned regarding recovery on
the ground of excess payment made is not being questioned, rather,
the part of the order passed by the learned Single Judge, whereby
and whereunder, the direction has been passed holding the writ
petitioner entitle for benefit of upgradation under the Assured Career
Progression Scheme even without passing the departmental
accounts examination, is being questioned in the instant appeal.
8. This Court by considering the aforesaid argument made at Bar
is now proceeding to examine the legality and propriety of the order
passed by the learned Single Judge, as to whether the passing of
the departmental examination before grant of benefit of upgradation
under the Assured Career Progression Scheme is necessary or not?
9. The resolution is also required to refer herein that the benefit of
time bound promotion was implemented under the 4th Pay Revision
Commission, wherein, by way of policy decision, the benefit of
upgradation was decided to be given in favour of one or the other
employees on completion of 10 years and 15 years of service, i.e.,
on completion of 10 years of service, the first upgradation and after
completion of 25 years of service, the second upgradation. However,
the said benefit has been decided to be recalled on the basis of the
recommendation of the Fitment Committee, when the 5th C.P.C. has
came into being.
The State Government, has taken decision under the
resolution no.660 dated 08.02.1999, whereby and whereunder, the
benefit which was granted under the time bound promotion scheme,
was decided to be rescinded on or after 31.12.1995, however,
without making any recommendation by carving out the concept of
need based post, as would appear from aforesaid resolution
appended as Annexure-4 to the paper book which contains a
condition as under paragraph-11 thereof.
It appears from the decision so taken as under paragraph-11 of
the resolution dated 08.02.1999 that the State Government has
taken decision to grant upgradation in the pay scale depending upon
the recommendation of the Fitment Committee, for ready reference,
stipulation so made as under paragraph-11 of the aforesaid
resolution is being referred as under:-
"11- jkT; ljdkj us foÙk foHkkx ds ladYi la[;k&6021 fnukad
18-12-89 dh df.Mdk 10 vkSj 12 esa mfYyf[kr dkyc) izksUufr;k¡
vkSj izoj dksfV dh lqfo/kkvksa dks lekIr djus dk fu.kZ; fy;k gS
vkSj os 1-1-1996 ls rFkk mlds ckn bu osruekuksa esa ykxw ugha
jgsaxhA ;fn ,slh dksbZ izksUufr fu;eksa ds v/khu 1-1-1996 ls igys
ns; gks rks ;g nh tk;xh vkSj ekStwnk osrueku esa cdk;s jkf'k dk
Hkqxrku flQZ 1 fnlEcj] 1995 rd gh dh tk;xh rFkk mlds ckn
,slh izksUufr Lor% lekIr le>h tk;xhA iqujhf{kr osruekuksa esa os
osru fu/kkZfjr djrs le; 31-12-1995 ds ckn nh x;h izksUufr;ksa
ij fopkj ugha fd;k tk;xkA ;fn 31-12-1995 ds ckn ,slh
izksUufr;k¡ nh xbZ gSa] rks bl izfØ;k esa izkIr ,slh vfrfjDr
ifjyfC/k;ksa ds leatu ds iz'u ij fQVesaV dfeVh }kjk izksUufr
lEcU/kh uhfr;ksa ij vuq'kalk,¡ fd, tkus ds mijkar fopkj fd;k
tk;xkA ^vko';drk vk/kkfjr in* ds :i fpfUgr in ds fjDr
gksus ij izksUufr vuqekU; gksxhA vko';drk vk/kkfjr inksa ds
igpku ds fy, df.Mdk 12 esa izfØ;k fu/kkZfjr dh xbZ gSA"
The purpose of making reference of the aforesaid
Clause/Condition is that the State Government has taken decision
for cancellation of grant of benefit under the time bound promotion
which was granted way back in the year, 1983. But when the benefit
which was granted under the time bound promotion scheme itself
was rescinded by virtue of resolution no.660 dated 08.02.1999, then
where was the occasion for the State Government to take decision
for recall of such decision, since, the same was already recalled and
the decision was taken by replacing the said benefit by virtue of
extending it under the Assured Career Progression Scheme.
It appears that the State has taken such decision by recalling
the benefit which was granted in favour of the writ petitioner of time
bound promotion because of the reason that the writ petitioner has
also not passed departmental accounts examination at the time
when the benefit of time bound promotion was granted. But the fact
remains that when by way of general decision, the same was
recalled then there was no necessity to take fresh decision for
recalling.
The aforesaid benefit of time bound promotion has been
replaced vide resolution dated 14.08.2002 as contained in resolution
no.5207, wherein, a condition has been stipulated that the public
servant if eligible to get the regular promotion, will only be eligible to
get the benefit of upgradation in pay scale under the Assured Career
Progression Scheme, relevant part of the aforesaid condition is being
referred as under:-
"3.¼vii½ ,0lh0ih0 ;kstuk ds rgr foÙkh; mRØe.k gsrq lkekU;
izksUufr ekudksa ;Fkk foHkkxh; ijh{kk esa mÙkh.kZrk] mPprj
;ksX;rk dh izkfIr vkfn tks HkrhZ ,oa izksUufr fu;ekoyh esa
fufgr gS] dks izkIr djuk vko';d gksxkA
3.¼x½ bl ;kstuk ds vUrxZr foÙkh; mUu;u ljdkjh lsod dks
mlds lEoxZ ds fy;s fof'k"V :i ls fu/kkZfjr oÙkZeku in
J`a[kyk ds osruekuksa esa feysxk vkSj blds fy;s dksbZ u;k in
l`ftr ugha fd;k tk;sxkA ijUrq ,dy in ,oa ,sls in@in
lewg@lEoxZ ftlesa fof'k"V :i ls in lksiku ugha cus gq, gSa
vkSj lh/ks jkT; lsok@lEoxZ esa dqN izfl) in gh izksUufr gsrq
o.kkZafdr gSa] muds lEcU/k esa lEc) dk;kZy;@foHkkx }kjk
vuqlwph&1 esa fufnZ'V osrueku ds rqjUr ckn okys osrueku esa
gh foÙkh; mUu;u fn;k tk;sxkA"
Such stipulation has been made on the ground that the criteria
for promotion is required to be followed even in the matter of
upgradation in pay scale, on the ground that the upgradation is by
way of grant of pay scale attached to the Higher Post in the cadre.
The condition of passing of the departmental accounts
examination is there in the Bihar Board's Miscellaneous Rules, 1958,
wherein, the Rule as contained in Rule 157(3)(J) provides a
condition that passing of departmental accounts examination is
necessary for grant of cadre promotion, for ready reference, Rule
157(3)(J) of the Bihar Board's Miscellaneous Rules, 1958 is being
referred as under:-
"(J)(a) Any clerk, who has not passed the preliminary
examination in Accounts, will be neither confirmed nor
be allowed to cross the efficiency bar;
(b) Any clerk, who has not passed the final examination,
will not be promoted to the Selection grade;
(c) In case of non-availability of senior clerk, finally
passed in Accounts Examination, any junior clerk,
having passed the final Accounts Examination may be
temporarily promoted to the Selection Grade;
Provided that the junior clerk temporarily promoted to
the Selection grade shall be reverted to the post of clerk
if the clerk senior to him passes the final Accounts
examination within two years from the date of his first
supersession and is promoted with effect from any date
within the said two years, otherwise the senior clerk
would be treated junior to all the clerks promoted to the
Selection grade prior to him."
The requirement to have the departmental accounts
examination, was mandatory to be possessed or not, fell for
consideration before the Patna High Court rendered in the case of
Mohammad Shamsuddin & Ors. Vrs. State of Bihar & Ors.,
reported in 1983 PLJR 347, wherein, the Patna High Court has held
that the passing of the departmental accounts examination, as
required under Rule 157(3)(J) is not mandatory, reference of the
relevant paragraph is being referred hereinbelow:-
"10. .... .... .... it has been contended that the posts of
selection Grade did not exist when the Boards
Miscellaneous Rules 1947 came in existence. Therefore
any direction by the Government to the effect that until and
unless these petitioners passed examination in accounts
they cannot be promoted to the Selection Grade post is
quite illegal. I find some force in this argument of the
learned counsel for the petitioners. The posts of Selection
Grade have been created much after the Board's
Miscellaneous Rules 1947 came in existence. When the
Board's Miscellaneous Rules 1947, which is statutory rule
does not provide or lays down that for promotion to a
Selection Grade post passing of examination in accounts is
a must, I think the petitioners cannot be called upon the
Selection Grade posts it otherwise they are found fit. It is
admitted that the Legislature has not framed any rule to
regulate the recruitment and condition of service of
persons appointed to the public service and post in
connection with affairs of this State. Therefore, the
provisions of Boards Miscellaneous Rules 1947 which was
adopted after independence are statutory and no executive
ORDER :can be passed in contravention of those
provisions. Therefore, the cases of these petitioners for
their promotion to the Selection Grade posts have to be
considered on merits from the due date without requiring
them to pass examination in Accounts."
But, again the nature of provision whether it is binding or not,
has fell for consideration before the Full Bench, since, the conflicting
views on the issue has come, i.e., in the case of Maheshwar Prasad
Singh Vrs. State of Bihar (supra), wherein, as per paragraph-16, it
has been held that passing of the departmental accounts
examination, as required under Rule 157(3)(J) is mandatorily to be
passed, reference of paragraph-16 is being referred as under:-
"16. The result of the above discussion is that the clerks of
the Muffasil offices could/cannot be promoted to the
selection grade posts without passing final examination in
Accounts except during the period between 1.5.80 and
29.3.82. Any promotion due to the clerks during that
period, thus, cannot be denied on the ground that they had
not passed the said examination."
10. The law since is already settled that the passing of the
departmental examination is mandatory to have the cadre promotion
and since, Clause 3 of the resolution no.5207 dated 14.08.2002
provides that the eligibility which is required to have with the one or
the other public servant is also to be followed in the matter of
upgradation in the pay scale, therefore, in the matter of upgradation
in pay scale also, the passing of the departmental accounts
examination is necessary as per the ratio laid down by the Full
Bench of the Patna High Court in the case of Maheshwar Prasad
Singh Vrs. State of Bihar (supra).
11. The issue may arise that after carving out the State of
Jharkhand, why the judgment passed by the Patna High Court is to
be followed. But, as per Section 84 of the Bihar Re-organization Act,
2000 that the judgment passed prior to 15.11.2000 will have the
binding effect upon the Jharkhand High Court.
The judgment rendered by the Full Bench of the Patna High
Court is prior to 15.11.2000 as it was delivered on 19.09.2000,
therefore, the same binds this Court.
12. Learned counsel appearing for the respondent-writ petitioner
has raised the question by showing the justification of the order
passed by the learned Single Judge, as per the reference so made
at paragraph-6, wherein, the observation has been made which led
the learned Single Judge to interfere with the impugned order that
such decision after 20 years since was taken without following the
principle of natural justice and hence, the same still survives and
therefore, the justification of the aforesaid order passed by the
learned Single Judge, cannot be questioned.
But, the learned counsel appearing for the appellant-State, in
response thereto, has submitted that it is incorrect on the part of the
respondent to take the ground that the decision was taken without
following the principle of natural justice, since, the show cause notice
has been issued, as would appear from Annexure-9 as contained in
letter no.153 dated 22.01.2010 asking the writ petitioner as to why
the benefit of upgradation as granted, be not recalled.
The reference of reply to the aforesaid show cause has also
been made by referring to Annexure-10 dated 11.02.2010. The
reference of another show cause notice dated 17.02.2010 has also
been made as under Annexure-11.
Learned counsel appearing for the appellant, therefore,
submits that once the response has also been given in reply to the
show cause then where is the question of taking the ground of not
following the principle of natural justice.
This Court has considered the content of Annexure-9 which is
a show cause notice and furthermore, the writ petitioner has duly
replied to the said show cause, as would appear from Annexure-10
dated 11.02.2010, therefore, the observation made by the learned
Single Judge so far as it relates to violation of principle of natural
justice, according to our considered view, appears to be error on
record and as such, said part of the observation is hereby, held to be
illegal.
Further, argument has been made that the benefit of
upgradation was granted way back, i.e., after more than the period
of 20 years and as such, the same cannot be recalled.
13. This Court has failed to understand that from where the period
of 20 years has come, perhaps, the period of 20 years is being
counted from the day when the benefit of time bound promotion was
granted, but the benefit of time bound promotion, once has been
recalled by virtue of policy decision taken by the State vide memo
no.660 dated 08.02.1999 which was replaced by another resolution
no.5207 dated 14.08.2002, hence, the benefit which was granted so
far as upgradation in pay scale is concerned, will be said to apply
from the date when such benefit was granted by virtue of resolution
dated 14.08.2002.
14. The learned Single Judge perhaps has made reference of 20
long years by taking the decision, as referred in the show cause
notice, as to why the benefit of time bound promotion, be not
recalled.
15. This Court, on the basis of the resolution no.660 dated
08.02.1999, is of the view as already referred hereinabove that there
was no occasion for the State to ask an explanation for making
recovery of the excess payment made under the time bound
promotion scheme, since, the same has already been rescinded by
virtue of resolution dated 08.02.1999.
16. Be that as it may, since, the writ petitioner has granted benefit
of upgradation under Assured Career Progression Scheme by virtue
of resolution dated 14.08.2002 and admittedly, he has not passed
the departmental accounts examination which is required to be
passed in view of the judgment rendered by the Full Bench of the
Patna High Court in the case of Maheshwar Prasad Singh Vrs.
State of Bihar (supra), therefore, the aforesaid legal position ought
to have been considered by the learned Single Judge.
But, it appears that the State has also failed to discharge his
duty in not bringing the aforesaid judgment of the Full Bench to the
notice of the learned Single Judge and perhaps that is the reason,
the learned Single Judge has failed to appreciate the aforesaid fact.
17. It is not the case that the State was not provided an
opportunity, rather a detailed counter affidavit was filed and as such,
while defending the decision of the State it was the deprived duty of
the State authority to apprise the Court with the correct facts
supported by the legal position but it is the utter surprise to this Court
by going through the counter affidavit filed on behalf of the State,
there is no reference of Rule 157(3)(J) of the Bihar Board's
Miscellaneous Rules, 1958 or the judgment rendered by the Full
Bench of the Patna High Court in the case of Maheshwar Prasad
Singh Vrs. State of Bihar (supra).
The State, although has filed affidavit but pointing out the
infirmity in the order passed by the learned Single Judge, but without
taking the aforesaid point in the counter affidavit, however, the same
being the legal position, the same is being considered by this Court
on the principle that the legal issue can be raised at any point of time
even at the stage of Article 136 of the Constitution of India.
This Court is further of the view that even if the said ground
has not been taken by the State merely on the basis of the aforesaid
fact that the legality which has been crept up while granting the
benefit of upgradation cannot be legalized.
Even accepting what has been observed by the learned Single
Judge at paragraph-6 of the impugned judgment that no such
decision has been taken after lapse of 20 years then also according
to our considered view, the writ petitioner has got no case on the
basis of the position of law that if the illegality has been crept up in its
inception, the same cannot be legalized due to the subsequent
development, reference in this regard may be made to the judgment
rendered by the Hon'ble Apex Court in the case of Ritesh Tewari
and Another Vrs. State of Uttar Pradesh and Others, reported in
[(2010) 10 SCC 677], wherein, at paragraph-32, it has been held as
under :-
"32. It is settled legal proposition that if an order is bad
in its inception, it does not get sanctified at a later
stage. A subsequent action/development cannot
validate an action which was not lawful at its inception,
for the reason that the illegality strikes at the root of the
order. It would be beyond the competence of any
authority to validate such an order. It would be ironical
to permit a person to rely upon a law, in violation of
which he has obtained the benefits."
Likewise, the Hon'ble Apex Court in the case of State of
Orissa & Anr. Vrs. Mamata Mohanty, reported in (2011) 3 SCC
436, wherein, at paragraph-37, it has been held as under:-
"37. It is a settled legal proposition that if an order
is bad in its inception, it does not get sanctified at a
later stage. A subsequent action/development
cannot validate an action which was not lawful at
its inception, for the reason that the illegality strikes
at the root of the order. It would be beyond the
competence of any authority to validate such an
order. It would be ironic to permit a person to rely
upon a law, in violation of which he has obtained
the benefits. If an order at the initial stage is bad in
law, then all further proceedings consequent
thereto will be non est and have to be necessarily
set aside. A right in law exists only and only when it
has a lawful origin. (Vide Upen Chandra Gogoi v.
State of Assam, Mangal Prasad Tamoli v.
Narvadeshwar Mishra and Ritesth Tewari v. State
of U.P)."
18. The illegality, if any, is to be rectified, the moment it came to the
knowledge of the authority concerned for its ratification on the
principle that the illegality cannot be allowed to be perpetuated,
reference, in this regard may be made to the judgment rendered by
the Hon'ble Apex Court in the case of Chaman Lal Vs. State of
Punjab and Ors., reported in (2014) 15 SCC 715, wherein the
Hon'ble Apex Court taking reference of the case rendered in
Basawaraj & Anr. Vs. Special Land Acquisition Officer, reported in
[(2013) 14 SCC 81] at paragraph- 16, held as under:
"16. More so, it is also settled legal proposition that
Article 14 does not envisage for negative equality. In
case a wrong benefit has been conferred upon
someone inadvertently or otherwise, it may not be a
ground to grant similar relief to others. This Court in
Basawaraj v. Land Acquisition Officer [Basawaraj v.
Land Acquisition Officer, (2013) 14 SCC 81 : AIR 2014
SC 746] considered this issue and held as under: (SCC
p. 85, para 8)
"8.It is a settled legal proposition that Article 14 of the
Constitution is not meant to perpetuate illegality or
fraud, even by extending the wrong decisions made in
other cases. The said provision does not envisage
negative equality but has only a positive aspect. Thus,
if some other similarly situated persons have been
granted some relief/benefit inadvertently or by mistake,
such an order does not confer any legal right on others
to get the same relief as well. If a wrong is committed
in an earlier case, it cannot be perpetuated. Equality is
a trite, which cannot be claimed in illegality and
therefore, cannot be enforced by a citizen or court in a
negative manner. If an illegality and irregularity has
been committed in favour of an 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 a
similarly wrong order. A wrong order/decision in favour
of any particular party does not entitle any other party
to claim benefits on the basis of the wrong decision.
Even otherwise, Article 14 cannot be stretched too far
for otherwise it would make functioning of
administration impossible. (Vide Chandigarh Admn. v.
Jagjit Singh [Chandigarh Admn. v. Jagjit Singh, (1995)
1 SCC 745] , Anand Buttons Ltd. v. State of Haryana
[Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC
164] , K.K. Bhalla v. State of M.P. [K.K. Bhalla v. State
of M.P., (2006) 3 SCC 581] and Fuljit Kaur v. State of
Punjab [Fuljit Kaur v. State of Punjab, (2010) 11 SCC
455] .)"
19. This Court, on the entirety of the facts and circumstances of the
case as per the discussion made hereinabove, is of the considered
view that the order passed by the learned Single Judge requires
interference.
20. Accordingly, the part of the order, whereby and whereunder,
upgradation in pay scale had been withdrawn on the ground of
having not passed the departmental accounts examination, is hereby
quashed and set aside.
21. In the result, the instant appeal stands allowed.
22. In consequence thereof, W.P.(S) No.1606 of 2010 is partly
allowed.
23. The writ petition being W.P.(S) No.1606 of 2010 is dismissed
so far as it relates to upgradation in pay scale which has been
withdrawn on the ground of having not passed the departmental
accounts examination.
24. Interlocutory application being I.A. No.6748 of 2021 stands
disposed of.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Rohit/-A.F.R.
