A. Rajaram vs State of Tamil Nadu and Others

S. Manikumar, J.—Though the petitioner has assailed G.O. Ms. No. 202, Labour and Employment (E2) Department, dated 15.11.1999

and the Letter No. 41303/E2/2008-3, Labour and Employment Department, dated 1.4.2009, of the Deputy Secretary to the Government for the

said Department, Mr. A. Thirumurthi, learned counsel for the petitioner confined his submissions on the aspect of promotion of the petitioner to the

post of Deputy Inspector of Labour for the panels prepared for the said post, from the year 2003 onwards. According to the learned counsel, the

petitioner, State President of Labour Inspectors Association, had been targeted and disciplinary proceedings were initiated against him, for his

bona fide act of exposing corrupt activities of higher officials at the Government level meeting, in the matters of transfers and promotions, etc. and

as the petitioner was not compromising to vested interests, charges were levelled against him frequently and that he was inflicted with penalties and

ultimately, suffered denial of promotion on account of one reason or the other. Though the petitioner has been inflicted with several punishments,

inviting the attention of this Court to the order in A/9652/99, dated 22.1.2001, passed by the Inspector of Labour, Tuticorin, wherein, a

punishment of stoppage of increment for two years, without cumulative effect has been inflicted, Mr. A. Thirumurthi, learned counsel for the

petitioner, submitted that the period of said penalty had already expired in the year 2003 itself, and therefore, it is not open to the respondents to

postpone the promotion of petitioner to the post of Deputy Inspector of Labour, considering his length of service from the year 1980.

Inviting the attention of this Court to the averments made in the counter affidavit filed by the Additional Secretary to Government, Labour and

Employment Department, Chennai, learned counsel for the petitioner submitted that when one Mr. Chelladurai, against whom a crime has been

registered by the Directorate of Vigilance and Anti-Corruption Department, has been considered for promotion to the post of Deputy Inspector of

Labour, the petitioner, who is not involved in any misconduct, involving moral turpitude or serious charges of corruption or corruption combined

with other charges, ought to have been considered for promotion to the post of Deputy Inspector of Labour and, in the above said circumstances,

submitted that there is violation of Article 14 of the Constitution of India.

During the course of hearing, it was already brought to the notice of this Court that in W.P. Nos. 41489 to 41495 and 45602 of 2006 filed by

the petitioner challenging the punishments, Hon''ble Mr. Justice K. Chandru, while setting aside the order of penalties in W.P. Nos. 41490 to

41495 and 45602 of 2006, directed the Secretary to the Government, Labour Department, Chennai, to constitute an ad hoc disciplinary authority

to consider the explanation submitted by the petitioner to the charges, which is subject matter of W.P. Nos. 41490 to 41495 and 45602 of 2006,

uninfluenced by the earlier orders passed by the competent authority and if necessary conduct enquiries and pass appropriate orders, after giving

due opportunity to the petitioner.

Per contra, based on a lengthy counter affidavit filed by the Additional Secretary to the Government, Labour and Employment Department,

Chennai, inviting the attention of this Court to the tabular column, provided at page 23 of the counter affidavit, and the impugned order, dated

1.4.2009, Mr. T.S. Mohammed Mohideen, learned Additional Government Pleader submitted that for several acts of misconduct, the petitioner

has been imposed with 20 punishments and that punishments are given effect in succession and the period of currency of punishments would expire

only on 31.3.2020. He further submitted that as per the Government guidelines, whenever an Officer undergoes any punishment other than that of

the punishment of censure on the crucial date or on the date of consideration, then the irrespective of the time of occurrence of irregularities, his

name should be passed over for that panel. As the petitioner has restricted his submissions for promotion to the post of Deputy Inspector of

Labour, from 2003 onwards, the State counsel submitted that till 2020, there are punishments in currency and that therefore, the petitioner is not

eligible for promotion. He submitted that there is no manifest illegality in the impugned Government Letter, dated 1.4.2009 and prayed for dismissal

of the writ petition.

Heard the learned counsel for the parties and perused the materials available on record.

Inasmuch as the petitioner himself has confined the consideration of his case for promotion to the post of Deputy Inspector of Labour from

2003 onwards, there is no need to advert to the contentions regarding non consideration of the petitioner for the above said post, for the previous

years. As rightly contended by the learned counsel for the State, for the acts of misconduct, the petitioner has been inflicted with punishment of

stoppage of increment and censure for different periods. The following punishments were in currency during the period of five years, preceding the

date of approval of the panel for the year 2009-2010.

Punishment of stoppage of increment can be given effect only when the increment is due. It could be seen from the tabular column that the

petitioner was imposed with the punishment of stoppage of increment for six months or one year or two years, etc. and as rightly pointed out, by

the State counsel, after completion of the penalty imposed in one disciplinary proceeding, the punishment of postponement of increment in another

disciplinary proceeding is given effect. Thus, for the successive period the punishment are given effect one after another, and runs to various period,

whenever the increment is due. Thus, the penalty of stoppage of increment imposed for two years without cumulative effect, by the Inspector of

Labour, Tuticorin by proceedings A/9652/99, dated 22.1.2001, has been given effect only between 1.7.2008 and 30.6.2010 and that, the tabular

column makes it clear that there is a currency of punishment from 1.7.2000 to 30.6.2010.

According to the learned counsel for the State, there are too many punishments and that if the punishments are given effect in succession, it

would end only on 2020, However, as per the common order made in W.P. Nos. 41489 of 2006 etc., dated 15.2.2011, the Secretary to the

Government, Labour Department, Chennai has been directed to constitute an ad hoc disciplinary authority to consider the explanation offered by

the petitioner with reference to the charges, subject matter of W.P. Nos. 41490 to 41495 and 45602 of 2006. Learned counsel for the petitioner

is not in a position to State the finality of the disciplinary proceedings, subject matter of the above said writ petitions. In any event, the common

order, stated supra, is subsequent to the impugned letter, dated 1.4.2009, of the Government. Prima facie, there is no manifest illegality in the

impugned order, warranting intervention. As stated supra, though the petitioner has assailed the G.O. Ms. No. 202, Labour Department E2 dated

15.11.1999, no argument has been advanced.

The last contention that one delinquent has been considered for promotion irrespective of a serious charge involving moral turpitude and that the

same yardstick ought to have been extended to the petitioner, who is not involved in any serious charge of misconduct, this Court is of the view

that the doctrine of equality is a positive concept and it cannot be extended to a case wherein, an irregularity or illegality is committed by the

administrative authorities and that if any benefit is obtained by some other person, by such an illegal or irregular order, the same cannot be

extended to others also. In this context, this Court deems it fit to extract few judgments of the Supreme Court on the aspect, as to how the concept

of equality enshrined under Article 14 of the Constitution of India, has to be applied.

(i) In Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, it has been held as follows:-

There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens.

This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. To put it in other

words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of

the High Court or of this Court, that the same irregularity or illegality be committed by the State so far such petitioners are concerned, on the

reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners

can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot

claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives

within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are

enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others.

Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him,

while it has been extended to others and in this process there has been a discrimination.

(ii) In Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit, Indore Vs. President, Indore Development Authority, , it has been held as

follows:-

.........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 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 appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative

equality. (See Union of India v. International Trading Co.)

(iii) In Directorate of Film Festivals and Others Vs. Gaurav Ashwin Jain and Others, the Supreme Court has held as follows:-

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 thus:

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.

(iv) In Shanti Sports Club and Another Vs. Union of India (UOI) and Others, the Supreme Court has held as follows:-

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 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: ( Commissioner of Central Excise Vs. Eswaran and Sons

Engineers Ltd.,

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.

Similar is the ratio of the judgments in Narain Das v. Improvement Trust, Amritsar; Gursharan Singh v. NDMC, Jaipur Development Authority

v. Daulat Mal Jain, Yadu Nandan Garg v. State of Rajasthan, State of Haryana v. Ram Kumar Mann, Faridabad CT Scan Centre v. D.G. Health

Services, Style (Dress land) v. UT, Chandigarh, State of Bihar v. Kameshwar Prasad Singh, Union of India v. International Trading Co., Ekta

Shakti Foundation v. Govt. of NCT of Delhi, Sanjay Kumar Manjul v. UPSC, K.K. Bhalla v. State of M.P., National Institute of Technology v.

Chandra Shekhar Chaudhary, Vice-Chancellor, M.D. University v. Jahan Singh, State of Kerala v. K. Prasad, Punjab SEB v. Gurmail Singh 36

and Panchi Devi v. State of Rajasthan.

In the light of the decisions, this Court is not inclined to subscribe to the contentions of the petitioner, on the aspect of discrimination. For the above

said reasons, the writ petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.