Madhya Pradesh High Court

Ramveer Nagar vs The State Of Madhya Pradesh on 15 June, 2023

Author: Gurpal Singh Ahluwalia

1 W.P.No.11609/2023

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 15th OF JUNE, 2023
WRIT PETITION No. 11609 of 2023
BETWEEN:-

1. RAMVEER NAGAR S/O LATE SHRI
GAJADHAR NAGAR, AGED ABOUT 42
YEARS, OCCUPATION: LIFTMEN R/O
H.NO. 103 KALYAN NAGAR CHHOLA
ROAD BHOPAL (MADHYA PRADESH)

2. HIRALAL SAHU S/O SHRI DALCHAND
SAHU, AGED ABOUT 57 YEARS,
OCCUPATION: LIFTMEN R/O H.NO.
C-121, RAJAURA ESTATE, NEAR
REGIONAL HOMES, BHOPAL
(MADHYA PRADESH)

3. RAJESH GOND S/O LATE SHRI
RAMCHARAN LAL, AGED ABOUT 53
YEARS, OCCUPATION: LIFTMEN R/O
H.NO. 103, INDIRA AWAS COLONY,
BHOPAL (MADHYA PRADESH)

.....PETITIONERS
(BY SMT.SONALI PAROCHE - ADVOCATE )

AND

1. THE STATE OF MADHYA PRADESH
THROUGH ITS DEPUTY SECRETARY
NARMADA VALLEY DEVELOPMENT
DEPARTMENT VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)

2. THE CHIEF ENGINEER
(ADMINISTRATION), NARMADA
VALLEY DEVELOPMENT
AUTHORITY DIVISION NO.3,
2 W.P.No.11609/2023

NARMADA BHAWAN, BHOPAL
(MADHYA PRADESH)

3. NARMADA VALLEY DEVELOPMENT
AUTHORITY, THROUGH VICE
PRESIDENT 59, ARERA HILLS,
BHOPAL (MADHYA PRADESH)

4. THE EXECUTIVE ENGINEER,
NARMADA VALLEY DEVELOPMENT
DIVISION NO.23, 59, ARERA HILLS,
BHOPAL (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI PRAVEEN NAMDEO - GOVERNMENT ADVOCATE)
...................................................................................................

This petition coming on for admission this day, the court passed
the following:

ORDER

This petition, under Article 226 of the Constitution of India, has been filed seeking following reliefs :-

"I. Issue a writ in the nature of mandamus directing the Respondent No.4 to consider and decide the pending representation (Annexure P/4) within stipulated period by giving appointment on the post of Driver with all consequential benefit to the petitioners, in the interest of justice.

II. Issue any other writ, order or direction as this Hon'ble Court deem fit."

2. It is submitted by the counsel for the petitioners that the petitioners were appointed as Daily Wagers (Peon) in the Narmada Valley Development Authority. Thereafter, they have been given the benefit of status of Sthai Karmi. By order dated 24.02.2022, the respondents have changed the post of one Ranga Rao Savadekar from Peon to Driver. It is claimed that the petitioners are also holding the educational qualifications as well as Driving licence, therefore, the representations were made to upgrade the post of the petitioners from Peon to Drivers and the said representations are pending. Accordingly, it is prayed that the respondents may be directed to decide the representations.

3. Heard the learned counsel for the petitioners.

4. Undisputedly, the petitioners were appointed as Daily Wagers (Peon) and they have been granted the benefit of Sthai Karmi on the said post. The petitioners want the upgradation of their post from Peon to Driver. The only basis for claiming such benefit is that the co-employee Shri Ranga Rao Savadekar has been given the said benefit and his post has been changed from Peon to Driver. However the counsel for the petitioners could not point out any legal right to substantiate their claim. Merely because the petitioners are holding the minimum qualification as well as the driving licence would not entitle them for upgradation of their post.

5. So far as the extension of similar benefit to the other employee is concerned, it is well established principle of law that this Court cannot apply the principle of "Negative Equality".

6. The Supreme Court in the case of Union of India and Another v. International Trading Co. & Another, reported in (2003) 5 SCC 437 has held as under :

"13. What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."

7. The Supreme Court in the case of Directorate of Film Festivals and Others v. Gaurav Ashwin Jain & Others reported in (2007) 4 SCC 737 has held as under :

"22. 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. The principle has been stated by this Court in Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745] thus: (SCC pp. 750-51, para 8) "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."

8. The Supreme Court in the case of Haryana State Electricity Board and Another v. Gulshan Lal & Others, reported in, (2009) 12 SCC 231 has held as under :

"32. The appellant is State within the meaning of Article 12 of the Constitution of India. For holding a public office, an employee must possess the requisite prescribed qualification, in absence whereof the additional reliefs could not have been granted to them relying on or on the basis of the judgment passed in the earlier cases.

33. Conditions of service of the employees of the

appellants are governed by the statutory rules. Violation thereof is impermissible in law. Whereas the appellants are bound by the doctrine of equality as envisaged under Article 14 of the Constitution of India, it is also well settled that unequals cannot be treated as equals. Herein, equality doctrine has been invoked only on the basis of relief granted in the case of Anil Kapoor.

34. In Anil Kapoor's case, a writ petition was also filed for the purpose of grant of designation. The same has rightly or wrongly been allowed. That would not mean that equality can be claimed on the basis thereof which would lead to a wholly anomalous situation. Decree granted by a competent court of law is no doubt binding on the employer. But, when in a subsequent litigation the absurd result emanating from the cascading effect thereof becomes apparent before another court and it is found that the said judgment is illegal, it is well settled, that by application of Article 14 of the Constitution of India alone, similar relief should not be granted.

35. Equality clause carries with it a positive effect. It signifies treating persons equally who are situated similarly. Those who had been occupying the position of Foreman Grade I and/or Foreman Grade II and other employees who were far below them either for the purpose of seniority or otherwise could not have been treated equally. The cascading effect thereof would be that for all intent and purport those who are in the joint seniority list being above Anil Kapoor and others in the seniority list would derive the same benefit irrespective of the fact as to whether they are qualified to hold the post of Foreman Grade I and/or otherwise gained sufficient experience therefor for promotion to that post."

9. The Supreme Court in the case of Shanti Sports Club & Another v. Union of India & Others, reported in (2009) 15 SCC 705, has held as under :

"71. Article 14 of the Constitution declares that: "14. Equality before law.--The State shall not deny to any person equality before the law or the equal

protection of the laws within the territory of India."

The concept of equality enshrined in that article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745] this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq yd plot in Sector 31-A, Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the estate officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and the Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on 18-3-1991. Thereafter, the respondent again approached the estate officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the estate officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case

pertaining to Smt Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under: (Jagjit Singh case [(1995) 1 SCC 745] , SCC pp. 750-51, para 8) "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. (emphasis in original) 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. (emphasis supplied) 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 petitioner's case is similar to the other person's 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 (sic court) 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."

10. The Supreme Court in the case of Basawaraj and Another v. Special Land Acquisition Officer, reported in (2013) 14 SCC 81 has held as under :

"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 [(1995) 1 SCC 745 : AIR 1995 SC 705], Anand Buttons Ltd.v. State of Haryana [(2005) 9 SCC 164 : AIR 2005 SC 565] ,K.K. Bhalla v. State of M.P.[(2006) 3 SCC 581 : AIR 2006 SC 898] and Fuljit Kaur v. State of Punjab[(2010) 11 SCC 455 : AIR 2010 SC 1937].)"

11. In absence of any legal right for the upgradation from the post of Peon to Driver, no case is made out even for a direction to the respondents to decide the representation of the petitioners.