Madhya Pradesh High Court
Pratiksha Meshram vs The State Of Madhya Pradesh on 30 November, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No. 17232/2012
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 30th OF NOVEMBER, 2023
WRIT PETITION No. 17232 of 2012
BETWEEN:-
PRATIKSHA MESHRAM, D/O LATE SHRI
TARACHAND MESHRAM, R/O J 145 FLAT NO.S-
1 VARDHMAN RESIDENCY HARSHWARDHAN
NAGAR, BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SATYAM AGRAWAL- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY,
URBAN ADMINISTRATION, VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. DIRECTOR, TOWN & COUNTRY
PLANNING BHOPAL, PARYAVARAN
PARISAR E-5 ARERA COLONY BHOPAL
(MADHYA PRADESH)
3. COMMISSIONER JOINT DIRECTOR,
TOWN & COUNTRY PLANNING, BHOPAL,
PARYAVARAN PARISAR E-5 ARERA
COLONY BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANSHUL TIWARI- PANEL LAWYER)
---------------------------------------------------------------------------------------------------------
This petition coming on for hearing this day, the court passed the
following:
2 W.P. No. 17232/2012
ORDER
This petition under Article 226 of Constitution of India has been
filed against the order dated 04th September, 2012 passed by respondent
No. 3/ Commissioner-cum-Director, Nagar Tatha Gram Nivesh, Bhopal
by which the appointment of the petitioner on the post of Assistant
Draftsman has been cancelled.
2. It is submitted by counsel for petitioner that an advertisement was
issued for appointment on the post of Assistant Draftsman. As per
minimum qualifications the aspirant was required to hold a Diploma in
Architect or Diploma in Draftsman from the institutions recognized by
the State of Madhya Pradesh.
3. It is fairly conceded by counsel for petitioner that the petitioner
was not holding the said qualification. However, the respondents did not
get any application from a candidate holding the Diploma thereby
fulfilling the qualifications as prescribed under the Rules. Therefore, the
respondents decided to relax the conditions and directed for preparation
of merit list on the basis of marks obtained by the candidates in
Draftsman Civil (ITI). Accordingly, petitioner was granted appointment
on temporary basis. However by the impugned order, her appointment
has been cancelled after two years. It is submitted by counsel for
petitioner that the petitioner was appointed without any
misrepresentation on her part and it was a conscious decision of the
respondents to prepare a merit list on the basis of marks obtained by the
candidates having Draftsman Civil (ITI), therefore, the respondent No. 3
has wrongly cancelled the appointment of the petitioner.
4. Per contra, the petition is vehemently opposed by the counsel for
respondent/State. It is submitted that since the petitioner was not holding
the minimum qualifications and the relaxation was erroneously given,
therefore, respondent No. 3 did not commit any mistake by cancelling
the appointment order of petitioner.
5. Heard learned counsel for the parties.
6. The undisputed facts are that the petitioner was not holding
minimum qualifications which are required for recruitment to the post of
Assistant Draftsman. However, in response to the advertisement, she
submitted her application. It was found by the respondents that no
application from an eligible candidate holding minimum qualification
has been received and accordingly, it was decided to prepare a merit list
on the basis of marks obtained by the candidates in Draftsman Civil
(ITI). Accordingly, the petitioner was given appointment.
7. Now the only question for consideration is as to whether the
procedure adopted by the respondents in relaxing the conditions and
preparing the merit list on the basis of a different qualification was
permissible or not?
8. The recruitment process starts from the date of issuance of
advertisement and continues till the appointment order is issued.
9. It is well established principle of law that the rules of game cannot
be changed in the mid way.
10. In the advertisement, the minimum qualification required for the
post of Assistant Draftsman was specifically mentioned as Diploma in
Architect or Diploma in Draftsmanship from any institute recognized by
the State of Madhya Pradesh. The counsel for petitioner could not point
out any provision in the advertisement to the effect that in case if, the
applications are not received from the eligible candidates, then the merit
list shall be prepared by considering the marks obtained by the
candidates having different qualifications. Therefore, it is clear that
number of candidates who might be holding different qualifications may
not have applied under the bona fide impression that they are not
eligible for the post which has been advertised.
11. Merely because the petitioner took a chance, then whether she can
be given the benefit of the same or not?
12. The Supreme Court in the case of Anupal Singh and Others Vs.
State of Utter Pradesh Through, Principal Secretary, Personel
Department and Others, reported in (2020) 2 SCC 173 has held as
under:-
"47. The case in hand is distinguishable from
those cases where the mode of selection was
altered by fixing the cut-off marks after the
selection process had completed/commenced;
whereas in the present case only wrongful
calculation in the number of vacancies in different
categories had been corrected in order to satisfy
the percentage of reservation against various
categories as per the provisions of the U.P.
Reservation Act, 1994. Such correction cannot be
said to be changing the rules or basis of selection.
The eligibility criteria was not changed.
48. It is also pertinent to note that the proposition
of law that rules of game cannot be changed after
the selection has been commenced itself has been
referred for reconsideration by a larger Bench
in Tej Prakash Pathak v. Rajasthan High
Court [Tej Prakash Pathak v. Rajasthan High
Court, (2013) 4 SCC 540 : (2013) 2 SCC (L&S)
353] . While referring the matter to a larger
Bench, in Tej Prakash [Tej Prakash
Pathak v. Rajasthan High Court, (2013) 4 SCC
540 : (2013) 2 SCC (L&S) 353] , the Supreme
Court explained the ambit of the expression
"changing the rules of the game" as under : (SCC
pp. 544-46, paras 11 & 15)
"11. Those various cases deal with
situations where the State sought to alter
(1) the eligibility criteria of the candidates
seeking employment, or (2) the method
and manner of making the selection of the
suitable candidates. The latter could be
termed as the procedure adopted for the
selection, such as, prescribing minimum
cut-off marks to be secured by the
candidates either in the written
examination or viva voce as was done
in K. Manjusree v. State of A.P. [(2008) 3
SCC 512 : (2008) 1 SCC (L&S) 841] or
the present case or calling upon the
candidates to undergo some test relevant to
the nature of the employment (such as
driving test as was in Maharashtra
SRTC v. Rajendra Bhimrao
Mandve [(2001) 10 SCC 51 : 2002 SCC
(L&S) 720] .
***
15. No doubt it is a salutary principle not
to permit the State or its instrumentalities
to tinker with the "rules of the game"
insofar as the prescription of eligibility
criteria is concerned as was done in C.
Channabasavaih v. State of Mysore [AIR
1965 SC 1293], etc. in order to avoid
manipulation of the recruitment process
and its results. Whether such a principle
should be applied in the context of the
"rules of the game" stipulating the
procedure for selection more particularly
when the change sought is to impose a
more rigorous scrutiny for selection
requires an authoritative pronouncement
of a larger Bench of this Court. We,
therefore, order that the matter be placed
before the Hon'ble Chief Justice of India
for appropriate orders in this regard."
13. Change of qualification will certainly amount to change of rules
of game.
14. Under these circumstances, the decision to prepare the merit list
on the basis of marks obtained by the candidates in Draftsman Civil
(ITI) will certainly amount to change of rules of game and will also be
violative of Article 16 of Constitution of India.
15. Under these circumstances, this Court is of the considered opinion
that if the respondents did not receive any application from eligible
candidates, then without there being any authority under the law or
without there being any provision in the advertisement, they did not
have any jurisdiction to change the eligibility criteria and they wrongly
prepared the merit list on the basis of marks obtained by the candidates
in Draftsman Civil (ITI).
16. Since the appointment of the petitioner itself was illegal and de
hors the rules as well as eligibility criteria coupled with the fact that the
decision of the respondents to relax the rules was not only violative of
Article 16 of Constitution of India but also amounted to change of rules
of game in the mid way, this Court is of the considered opinion that
respondent No. 3 did not commit any mistake by cancelling the
appointment of the petitioner.
17. Even otherwise, there is no interim order in favor of the petitioner.
Therefore, it is clear that the petitioner is not in job and a mistake
committed by the respondents cannot be perpetuated.
18. So far as the contention of counsel for petitioner that the similarly
situated persons were also granted appointment by relaxing the rule is
concerned, it is the stand of the respondents that action is being taken
against those candidates also. Even otherwise, the principle of negative
equality has no place under Article 14 and 16 of Constitution of India.
19. 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."
20. 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."
21. 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."
22. 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."
23. 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].)"
24. Considering the totality of the facts and circumstances of the case,
this Court is of the considered opinion that no case is made out
warranting interference.
25. Petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
AL
Date: 2023.12.01 17:54:59 +05'30'
