Ramswaroop Balmik vs The State Of Madhya Pradesh Thr
2023 Latest Caselaw 4209 MP

                        1

  IN THE HIGH COURT OF MADHYA PRADESH
              AT G WA L I O R
                 BEFORE
     HON'BLE SHRI JUSTICE ROHIT ARYA

        ON THE 17th OF MARCH, 2023

        WRIT PETITION No. 5761 of 2016

BETWEEN:-
RAMSWAROOP BALMIK S/O LATE SHRI NADAR
BALMIK,    AGED-30  YEARS,    OCCUPATION:
UNEMPLOYED, R/O KAMPOO AWADPURA, VAKIL
COLONY,    LASHKAR,  GWALIOR       (MADHYA
PRADESH)
                           .....PETITIONER
(SHRI RAJMANI BANSAL-ADVOCATE FOR THE
PETITIONER)
AND
1.
   STATE   OF  M.P.  THROUGH    PRINCIPAL
   SECRETARY,    LOCAL     ADMINISTRATION
   DEPARTMENT, GOVERNMENT OF MADHYA
   PRADESH, MANTRALAYA, VALLABH BHAWAN,
   BHOPAL (MADHYA PRADESH)
2. MUNICIPAL      CORPORATION,    GWALIOR
   THROUGH     ITS  COMMISSIONER,   TARUN
   PUSHKAR, CITY CENTRE, GWALIOR.

                              .....RESPONDENTS

(SHRI ROHIT SHRIVASTAVA- PANEL LAWYER FOR
                                   2

RESPONDENT/STATE;

SHRI   NAKUL     KHEDKAR-ADVOCATE                          FOR
RESPONDENT NO.2)

      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:-

1. The order annexure-P-1 may kindly be quashed;

2. A direction may kindly be given to the respondents to consider the representation of the petitioner in the light of the order annexure-P-4 and give the compassionate appointment to the petitioner within stipulated period.

3. Any other relief which this Hon'ble court deem fit in the facts and circumstance of the case may kindly be granted to the petitioner."

The necessary facts for the disposal of the present petition, in short, are that the mother of the petitioner died in harness during her service tenure and the petitioner filed an application for appointment on compassionate ground before

respondent no.2, which was rejected vide communication dated 02.09.2009 (Annexure P-1) on the ground that his brother is already in S.B.I. and hence, in view of Para 1 of Compassionate Appointment Order No.C/03/7/2000/3/1 Bhopal dated 22.01.2007, he is not entitled to compassionate appointment.

It is submitted by the counsel for the petitioner that the brother of the petitioner is residing separately, therefore, he cannot be considered to be a member of the family of the petitioner. Therefore, his claim has wrongly been rejected by the respondents. It is submitted that the appointment had been given by the Municipal Corporation, Ratlam to one Mr. Manish Kalosiya, whose case is identical to that of the petitioner. Therefore, the rejection of the claim of the petitioner by the respondents amounts to discrimination. To buttress his contention, the learned counsel for the petitioner has relied upon the order dated 15.01.2014 passed in WP.12017 of 2012 (S).

Per contra, it is submitted by the learned counsel for the State that the judgment passed by Coordinate Bench of this Court on 17/07/2007 in the case of Ku. Priyanka Dixit vs. State of MP (Writ Petition No.3250 of 2006), the judgment passed in the case of Prakash Parmar vs. Govt. of MP & Ors. reported in 2012(4) MPLJ 539 and the judgment passed in the

case of Sohan Joshi vs. State of MP and Others, reported in 2012(3) MPLJ 543 have been overruled by the Division Bench of this Court in the case of Prajesh Shrivastava vs. State of MP and Others, reported in 2016(3) MPLJ 88.

Heard the learned counsel for the parties. The Division Bench of this Court in the case of Prajesh Shrivastava (supra) has held as under:-

''31. The foremost factor for consideration for appointment on compassionate ground, therefore, is to protect the family in question from penury on the death of sole bread earner. It is in the light of this aspect Clause 4.1 is to be understood. It states that in case any eligible member of the deceased family is in Government service, he will not be entitled for appointment on compassionate ground. Apparently, the Clause is loosely drafted. If a family member at best residing separately is already in employment in Government service, there is no need for him to file an application for appointment on compassionate ground in lieu of death of father, mother or brother, as the case may be. The need arises only when '' no one in the family'' is in employment of the State or instrumentality of the State and there is sudden death of the sole bread earner.

32. We, therefore, respectfully disagree with the interpretation given to Clause 4.1 of the Policy for compassionate appointment in Ku. Priyanka Dixit (supra) and Prakash Parmar (supra) and hold that where in a family of deceased Government servant, any of the member eligible for compassionate appointment is in the employment in government

service or corporation, board, council, commission etc., any other member of the family, though eligible, will not be entitled for appointment on compassionate ground.'' Thus, it is clear that the aspirant cannot be granted appointment on compassionate ground if any of his family members is already in Government employment.

It is next contended by learned counsel for the petitioner that the benefit of appointment on compassionate ground had been given to one Mr. Manish Kalosiya (supra), whose case is identical to that of the petitioner, therefore, it amounts to discrimination in case of violation of Article 14 of the Constitution of India.

It is well-established principle of law that the right to equality is a positive right and is not a negative right. If a mistake is committed by the authorities, then this Court by issuing mandamus cannot compel them to repeat the same.

Hon'ble Supreme Court in the case of Mangalam Organics Limited Vs. Union of India reported in (2017) 7 SCC 221 has held as under:-

"41. Examination of the matter in the aforesaid perspective would provide an answer to most of the arguments of the appellants. It would neither be a case of discrimination nor can it be said that the appellants have any right under Article 14 or Article 19(1)(g) of the Constitution which has been violated by non-issuance of notification under Section 11-C

of the Act. Once the appellant accepts that in law it was liable to pay the duty, even if some of the units have been able to escape payment of duty for certain reasons, the appellant cannot say that no duty should be recovered from it by invoking Article 14 of the Constitution. It is well established that the equality clause enshrined in Article 14 of the Constitution is a positive concept and cannot be applied in the negative."

The Supreme Court in the case of Union of India and another Vs. International Trading Co. and 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."

The Supreme Court in the case of Doiwala Sehkari Shram Samvida Samiti Ltd. Vs. State of Uttaranchal and others reported in (2007) 11 SCC 641 has held as under:-

"28. This Court in Union of India v. International Trading Co. has held that two wrongs do not make one right. The appellant cannot claim that since something wrong has been done in another case, directions should be given for doing another wrong. It would not be setting a wrong right but could be perpetuating another wrong and in such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 cannot be pressed into service in such cases. But the concept of equal treatment presupposes existence of similar legal foothold. It does not countenance repetition of a wrong action to bring wrongs on a par. The affected parties have to establish strength of their case on some other basis and not by claiming negative quality. In view of the law laid down by this Court in the above matter, the submission of the appellant has no force. In case, some of the persons have been granted permits wrongly, the appellant cannot claim the benefit of the wrong done by the Government."

The Supreme Court in the case of Vishal Properties (P)

Ltd. Vs. State of U.P. and others reported in (2007) 11 SCC 172 has held as under:-

"13. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier. In Sushanta Tagore v. Union of India this Court rejected such a contention as sought to be advanced in the present case by observing: (SCC pp. 28-29, para 36) "36. Only because some advantages would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality."

14. This view also finds support from the judgments of this Court in Sneh Prabha v. State of U.P., Secy., Jaipur Development Authority v. Daulat Mal Jain, State of Haryana v. Ram Kumar Mann and Faridabad CT Scan Centre v. D.G. Health Services.

15. In Financial Commr. (Revenue) v. Gulab Chand this Court rejected the contention that as other similarly situated persons had been retained in service, persons senior to the petitioner could not

have been discharged during the period of probation observing that even if no action had been taken in similar situation against similarly situated persons then too it did not confer any legal right upon the petitioner.

16. In Jalandhar Improvement Trust v. Sampuran Singh and Union of India v. Rakesh Kumar this Court held that courts cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship.

17. Any action/order contrary to law does not confer any right upon any person for similar treatment. (See State of Punjab v. Dr. Rajeev Sarwal; Yogesh Kumar v. Govt. of NCT, Delhi; Union of India v. International Trading Co. and Anand Buttons Ltd. v. State of Haryana.)

18. Recently in State of Kerala v. K. Prasad it was inter alia held as follows: (SCC p. 147, para 14)

"14. Dealing with such pleas at some length, this Court in Chandigarh Admn. v. Jagjit Singh has held that: (SCC p. 750, para 8)

'8. ... 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

[under Article 226] cannot be exercised for such a purpose.'

This position in law is well settled by a catena of decisions of this Court. (See Secy., Jaipur Development Authority v. Daulat Mal Jain and Ekta Shakti Foundation v. Govt. of NCT of Delhi.) It would, thus, suffice to say that an order made in favour of a person in violation of the prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities."

Accordingly, this Court is of the considered opinion that merely because the Municipal Corporation, Ratlam has given appointment to one Mr. Manish Kalosiya (supra), no benefit of the same can be extended to the petitioner on the ground of ''negative equality''.

Accordingly, this petition fails and is hereby dismissed.

(Rohit Arya) Judge PAWAN Digitally signed by PAWAN DHARKAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001,

DHARK st=Madhya Pradesh, 2.5.4.20=5da1b3ce5c6aee672b1f51a5cff5 661c113046ab7ebb8031c36dcac4472c04 0a, pseudonym=22FE9CB9F7CF0345E7FFAC

AR 9031E38DF6A29B4C10, serialNumber=C72B9531562BC6028F5D6 E42E82477C85878470B30E4A7672CCA52 3E83C0BCB9, cn=PAWAN DHARKAR Date: 2023.03.20 18:43:34 +05'30'