Dilip Kumar vs State Of Jharkhand And Ors

D.N. Patel, J

This Letters Patent Appeal has been preferred by the original petitioner whose, writ petition being W.P.(S) No. 5014 of 2009 was disposed of by

the learned Single Judge vide judgment and order dated 22nd July, 2016, whereby, the claim of the appellant for appointment on Class-III post was not

granted by the learned Single Judge and, hence, the original petitioner has preferred present Letters Patent Appeal.

Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that this appellant is an original

petitioner. He was appointed as Compiler/Census Operator in the erstwhile State of Bihar in the year 1991.

Once the census mechanism was over, there was retrenchment of as many as 602 employees in the year 1992.

It further appears from the facts of the case that such retrenched employee had approached the Hon'ble High Court of Patna and ultimately the

matter went up to the Hon'ble Supreme Court. It has been held by the Hon'ble Supreme Court in the case of State of Bihar v. Shyam Yadav reported

in (1997) 2 SCC 507 in paragraph 17, which reads as under:

In the result, the appeals are allowed, the impugned judgments of the High Court, insofar as they direct that the retrenched employees of 1991

census operations are entitled to be given preference in the matter of appointment in the services under the State of Bihar, are set aside. The

petitioners can apply for appointment against any post falling vacant if they fulfil the qualification and other conditions prescribed for appointment to

such post and, if they so apply, they shall be considered in accordance with the rules governing such appointment. In case they are found to be

overage, one time relaxation in age may be given to them provided they were within the age-limit prescribed for appointment at the time of their initial

recruitment in the census organisation. It is also directed that registration in the Employment Exchange of those petitioners who were earlier so

registered prior to their appointment to the census organisation shall be restored and those who were not registered would be entitled to get themselves

registered at the Employment Exchange. The petitioners who are thus registered with the Employment Exchange shall be given priority/relaxation in

the matter of forwarding their names for appointment against future vacancies. No order as to costs.

(emphasis supplied)

In view of the aforesaid decision, it appears that the order of absorption of retrenched employee in other Government Department passed by the

Hon'ble High Court was quashed and set aside and liberty was given to the retrenched employees to apply afresh and in case any vacancy arises,

their candidature will be considered in accordance with law.

In view of the aforesaid direction, there was no right vested in such type of employees, who were retrenched to get themselves to be absorbed in

the Government Department nor was there any right vested in them to be regularised.

After lapse of several years i.e. more than period of one decade, a policy was floated by the State of Jharkhand dated 5th August, 2006, which is at

Annexure-9 to the memo of this Letters Patent Appeal for absorption of such employees. In fact, this policy also renders counter to the observation

made in paragraph 17 of the aforesaid decision. Nonetheless, looking to the hardship of unemployed persons and as a compassionate measure, the

Scheme was floated with a view to accommodate retrenched employees, who were Compilers/Census Operators in the year 1991, they were

employed in the month of October 2006.

This appellant (original petitioner) expects that as he was employed for few months in the year 1991 as a Class-III employee, now after lapse of

more than one and half decade, he should be absorbed as a Class-III employee. This contention is not accepted by this Court mainly for the reasons

that-

(a) There is no right vested in the retrenched employee, as stated in paragraph 17 of the decision reported in (1997) 2 SCC 507.

(b) In fact, Compilers/Census Operators are meant only for census.

The work was temporary in nature. They were retrenched and retrenchment has been held as a valid one. After lapse of one and half decade, there is

no right vested in this appellant to be absorbed in the Government Department.

(c) This appellant (original petitioner) has already been appointed as Class-IV employee and he has accepted the said appointment and, therefore, now

he cannot be re-employed as Class-III employee.

It has been held by the Hon'ble Supreme Court in the case of State of Haryana v. Naresh Kumar Bali, reported in (1994) 4 SCC 448, in paragraphs

15 and 16, which read as under:

We have set out the factual background in full. The letter of the respondent's mother dated 3-8-1988 categorically states that her son

(respondent) was willing to be appointed as a clerk. It was on that the appointment letter, extracted above, came to be issued. Though the respondent

claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post of a teacher because he

did not have the requisite qualification. In fact, the respondent did not object to his appointment as a clerk and his claim for consideration for the post

of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been completed. The claim for

appointment as Inspector was never made earlier. The High Court without even analysing the circumstances under which the seven persons

mentioned in its judgment came to be appointed as Police Officers (ASI or Inspector), straight away has chosen to conclude that there was

discrimination. We are not in a position to appreciate this line of reasoning. The positive finding ought to have been given whether the case of the

respondent was comparable with those of the seven and then a finding of discrimination ought to have been rendered.

With regard to appointment on compassionate ground we have set out the law in Life Insurance Corpn. of India v. Asha Ramchhandra Ambekar.

The same principle will clearly apply here. What the High Court failed to note is the post of an Inspector is a promotional post. The issuing a direction

to appoint the respondent within three months when direct recruitment is not available, is unsupportable. The High Court could have merely directed

consideration of the claim of the respondent in accordance with the rules. It cannot direct appointment. Such a direction does not fall within the scope

of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decision-making process and not against the decision itself;

and it is no part of the court's duty to exercise the power of the authorities itself. There is widespread misconception on the scope of interference in

judicial review. The exercise of the extraordinary jurisdiction constitutionally conferred on the Apex Court under Article 142(1) of the Constitution can

be of no guidance on the scope of Article 226. For these reasons we set aside the judgment under appeal and remit the matter to the High Court for a

fresh consideration in the light of what we have indicated above. Accordingly, the appeal is allowed. No costs.

(emphasis supplied)

It has been held by the Hon'ble Supreme Court in the case of State of Rajasthan v. Umrao Singh, reported in (1994) 6 SCC 560, in paragraphs 8

and 9, which read as under:

Admittedly the respondent's father died in harness while working as Sub-Inspector, CID (Special Branch) on 16-3-1988. The respondent filed an

application on 8-4-1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a

consideration of his plea, he was appointed to the post of LDC by order dated 14-12-1989. He accepted the appointment as LDC. Therefore, the right

to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever

arise. Otherwise, it would be a case of ""endless compassion"". Eligibility to be appointed as Sub-Inspector of Police is one thing, the process of

selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that

direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case.

Since both the sides relied on Naresh Kumar Bali's case, we will now refer to the same. We had indicated our mind in that very ruling in paragraph

15 of the said judgment. It reads as under:

Though the respondent claimed that he had applied for the post of a teacher the Subordinate Service Selection Board had not chosen him for the post

of teacher because he did not have the requisite qualification. In fact, the respondent did not object to his appointment as a clerk and his claim for

consideration for the post of teacher was one year after his appointment. Thus, the appointment on compassionate ground as per the scheme had been

completed.

(emphasis supplied) Therefore, once the right has consummated as we indicated earlier, any further or second consideration for a higher post on the

ground of compassion would not arise.

(emphasis supplied)

In view of the aforesaid decisions, once this appellant (original petitioner) has already accepted Class-IV employment, which is given by the State

only as a charity or due to compassionate view taken by the State, he cannot choose Class-III employment, instead of Class-IV employment.

This appellant has been given employment at the cost of young aspiring persons, who are awaiting for the public post.

More than reasonable view has been taken by the respondent-State, in fact, at the cost of others. The employment has been given to the Census

Operators in the month of October 2006, who were employed for few months in the year 1991 and who were retrenched in the year 1992, despite

paragraph 17 of the decision rendered by the Hon'ble Supreme Court reported in (1997) 2 SCC 507.

Enough is enough. Nothing more is required to be given to this appellant, much less, from Class-IV to Class-III employment.

It is submitted by the learned counsel for the appellant that few other persons have been given Class-III employment. This contention is also not

accepted for change of employment of this appellant mainly for the reason that there is no need for the respondent-State to maintain, equality in

illegality.

It has been held by the Hon'ble Supreme Court in the case of Secy., Jaipur Development Authority v. Daulat Mal Jain , reported in (1997) 1 SCC

35, in paragraphs 24, 25, 26, 27 and 28, which read as under:

The question then is whether the action of not delivering possession of the land to the respondents on a par with other persons who had

possession is an ultra vires act and violates Article 14 of the Constitution? We had directed the appellants to file an affidavit explaining the actions

taken regarding the allotment which came to be made to others. An affidavit has been filed in that behalf by Shri Pawan Arora, Deputy

Commissioner, that allotments in respect of 47 persons were cancelled and possession was not given. He listed various cases pending in this Court and

the High Court and executing court in respect of other cases. It is clear from the record that as and when any person had gone to the court to get the

orders of the LAO enforced, the appellant-Authority resisted such actions taking consistent stand and usually adverse orders have been subjected to

decision in various proceedings. Therefore, no blame of inaction or favouritism to others can be laid at the door of the present set-up of the appellant-

Authority.

When the Minister was the Chairman and had made illegal allotments following which possession was delivered, no action to unsettle any such illegal

allotment could have been taken then. That apart, they were awaiting the outcome of pending cases. It would thus be clear that the present set-up of

the bureaucrats has set new standards to suspend the claims and is trying to legalise the ultra vires actions of Minister and predecessor bureaucrats

through the process of law so much so that illegal and ultra vires acts are not allowed to be legitimised nor are to be perpetuated by aid of Article 14.

That apart, Article 14 has no application or justification to legitimise an illegal and illegitimate action. Article 14 proceeds on the premise that a citizen

has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit

thereof. Such person cannot be discriminated to deny the same benefit. The rational relationship and legal back-up are the foundations to invoke the

doctrine of equality in case of persons similarly situated. If some persons derived benefit by illegality and had escaped from the clutches of law, similar

persons cannot plead, nor the court can countenance that benefit had from infraction of law and must be allowed to be retained. Can one illegality be

compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously no.

In Yadu Nandan Garg case, it was contended that one of the persons whose land was acquired, had the benefit of exemption from the acquisition;

writ petition was filed seeking similar benefit. When it was contended that it was violative of Article 14, this Court in para 5 had held that:

the wrong exemption under wrong action taken by the authorities will not clothe others to get the same benefit nor can Article 14 be pressed into

service on the ground of invidious discrimination.

In Coromandel Fertilizers Ltd. v. Union of India, it was held in para 13, that wrong decision in favour of any party does not entitle any other party

to claim the benefit on the basis of the wrong decision. In that case, one of the items was excluded from the schedule, by wrong decision, from its

purview. It was contended that authorities could not deny benefit to the appellant, since he stood on the same footing with the excluded company.

Article 14, therefore, was pressed into service. This Court had held that even if the grievance of the appellant was well founded, it did not entitle the

appellant to claim the benefit of the notification. A wrong decision in favour of any particular party does not entitle another party to claim the benefit

on the basis of a wrong decision. Therefore, the claim for exemption on the anvil of Article 14 was rejected.

In Chandigarh Admn. v. Jagjit Singh, allotment of the sites was the subject-matter under several proceedings in the High Court; ultimately some

persons had the benefit of allotment while others were denied of the same. When Article 14 was pressed into service, this Court in para 8 at p. 750

had held that the basis of the principle, if it can be called one, on which the writ petition had been allowed to be taken was unsustainable in law and

indefensible in principle. The mere fact that the respondent-Authority had 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 could not be made the basis of issuing a writ compelling the respondent-Authority to repeat the illegality to cause another

unwarranted order. The extraordinary and discretionary power of the High Court under Article 226 cannot be exercised for such a purpose.

A host of other decisions in that context have laid the same principle. It is not necessary to burden the judgment any further. Suffice it to hold that

the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to

ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to

perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the

respondents.

(emphasis supplied)

It has been held by the Hon'ble Supreme Court in the case of Yogesh Kumar v. Govt. of NCT, Delhi, reported in (2003) 3 SCC 548, in paragraphs

6, 7 and 8, which read as under:

Lastly, learned counsel for the appellants urged that undisputedly for the last several years for recruitment of primary teachers in municipal

corporation schools, candidates with BEd degree were considered and appointed. This long-standing practice should be taken as aid to construe the

terms of the advertisement and particularly clause (B)(ii) on which reliance is placed by BEd candidates to consider them eligible.

In support of the above contention, learned counsel placed reliance on the decision of this Court in N. Suresh Nathan v. Union of India.

This last argument advanced also does not impress us at all. Recruitment to public services should be held strictly in accordance with the terms of

advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have

competed for the post. Merely because in the past some deviation and departure was made in considering the BEd candidates and we are told that

was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue. The recruitment authorities were well aware

that candidates with qualification of TTC and BEd are available yet they chose to restrict entry for appointment only to TTC-pass candidates. It is

open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. So far as BEd

qualification is concerned, in the connected appeals (CAs Nos. 1726-28 of 2001) arising from Kerala which are heard with this appeal, we have

already taken the view that BEd qualification cannot be treated as a qualification higher than TTC because the nature of the training imparted for

grant of certificate and for degree is totally different and between them there is no parity whatsoever. It is projected before us that presently more

candidates available for recruitment to primary school are from BEd category and very few from TTC category. Whether for the aforesaid reasons,

BEd qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider BEd

candidates for the present vacancies advertised as eligible. In our view, the Division Bench of the Delhi High Court was fully justified in coming to the

conclusion that BEd candidates were rightly excluded by the authorities from selection and appointment as primary teachers. We make it clear that

we are not called upon to express any opinion on any BEd candidates appointed as primary teachers pursuant to advertisements in the past and our

decision is confined only to the advertisement which was under challenge before the High Court and in this appeal.

(emphasis supplied)

It has been held by the Hon'ble Supreme Court in the case of State of U.P. v. Rajkumar Sharma, reported in (2006) 3 SCC 330, in paragraphs 13,

14, 15 and 16, which read as under:

Filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights granted under Articles 14

and 16 of the Constitution. (See Union of India v. Ishwar Singh Khatri; Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat; State of

Bihar v. Secretariat Asstt. Successful Examinees Union, 1986; Prem Singh v. Haryana SEB; Surinder Singh v. State of Punjab and Kamlesh Kumar

Sharma v. Yogesh Kumar Gupta.)

Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidate's name in the list does not confer any right to be selected,

even if some of the vacancies remained unfilled and the candidates concerned cannot claim that they have been given a hostile discrimination. (See

Shankarsan Dash v. Union of India; Asha Kaul v. State of J&K; Union of India v. S.S. Uppal; Hanuman Prasad v. Union of India; Bihar Public

Service Commission v. State of Bihar; Syndicate Bank v. Shankar Paul; Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra;

Punjab SEB v. Seema; All India SC & ST Employees' Assn. v. A. Arthur Jeen; Vinodan T. v. University of Calicut; S. Renuka v. State of A.P. and

Batiarani Gramiya Bank v. Pallab Kumar.)

Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the

Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh

Prabha v. State of U.P.; Secy., Jaipur Development Authority v. Daulat Mal Jain; State of Haryana v. Ram Kumar Mann; Faridabad C.T. Scan

Centre v. D.G., Health Services; Jalandhar Improvement Trust v. Sampuran Singh; State of Punjab v. Dr. Rajeev Sarwal; Yogesh Kumar v. Govt. of

NCT, Delhi; Union of India v. International Trading Co. and Kastha Niwarak Grihnirman Sahakari Sanstha Maryadit v. President, Indore

Development Authority.)

In view of the aforesaid, the High Court after having correctly indicated the legal position has failed to apply the same to the factual scenario in its

proper perspective. The basic fallacy in the judgment of the learned Single Judge and the Division Bench is that they proceeded under the presumption

that the select list was in force. This view is clearly wrong. In para 31 of the earlier judgment it was made clear that it was up to the State to take a

decision as to whether any relief can be granted to the persons who were selected in respect of the hill cadre. All the posts advertised for the plains

cadre have been filled up. Therefore, the State has rightly taken the stand that there was no scope for appointing non-official respondents. Relaxation

was given for a period of three years for applicants, when applications are invited for selection by U.P. PSC or the Uttaranchal State Public Service

Commission. Obviously, relaxation is to be granted when fresh applications are invited. That is not the case here. Therefore, the judgments of the

learned Single Judge as well as Division Bench affirming the same cannot be maintained and are set aside. The appeal is allowed but without any

order as to costs.

(emphasis supplied)

In view of the aforesaid decisions and also keeping in mind paragraph 17 of the decision rendered by the Hon'ble Supreme Court reported in

(1997) 2 SCC 507, this appellant has no right to be appointed as Class-III employee, when his services were already retrenched in the year 1992,

validly. This appellant is already given Class-IV employment in the year 1996, now he cannot claim Class-III employment. These aspects of the

matter have been properly appreciated by the learned Single Judge while disposing of W.P. (S) No. 5014 of 2009 vide judgment and order dated 22 nd

July, 2016. We see no reason to take any other view than what is taken by the learned Single Judge. Hence, there is no substance in this Letters

Patent Appeal, the same is, therefore, dismissed.