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Judgment
Tejinder Singh Doabia, J.—The petitioners submit that they are working as Assistant Inspectors and Fitters. Three orders came to be
passed. Copies whereof are Annexures ""A"", ""B"" and ""C"", to the writ petition. These orders make mention of the fact that the petitioners would not
claim the benefit of higher pay scale. The petitioners submit that they cannot be asked to perform the duty on a higher post on a lower grade for all
times to come. It is further submitted that even if they had given some undertaking to the State and that cannot stand in the way for all times to
come.
It is a settled proposition of law that fundamental rights cannot be waived. The earliest view on the subject would find reported as ehram
Khurshid Pesikaka v. State of Bombay, AIR 1955 SC 123. It was observed that doctrine of waiver enunciated by some American judges in
construing the American Constitution cannot be introduced in our Constitution. The rights described as fundamental rights are a necessary
consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic
republic and to secure to all its citizens justice, social economic and political; liberty of thought, expression, belief, faith and worship; equality of
status and the opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they came
into operation in considering individual rights. These have been put there as a matter of public policy and the doctrine of waiver can have no
application to provisions of law which have been enacted as a matter of constitutional policy. It was said that reference to some of the Articles,
inter alia, Articles 15(1), 20, 21 makes the proposition quite plain. A citizen cannot get discrimination by telling the State ""you can discriminate"".
In a still clearer language the Supreme Court in the case reported as Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan and
another, AIR 1959 SC 149 observed that Article 14 is, in form, an admonition addressed to the State and does not directly purport to confer any
right on any person. The obligation thus imposed on the State, no doubt, enures for the benefit of all persons, as a necessary result of the operation
of this Article, they all enjoy equality before the law. It was further observed that a person or a citizen may or any not waive any right but he cannot
certainly give up or waive a breach of the fundamental right.
A Full Bench of Allahabad High Court in Pradip Tandon v. State of Uttar Pradesh and ors., AIR 1972 Allahabad 1 considered this question. It
was observed that merely because a citizen has filled some form would not confer upon the State a power to discriminate in violation of the
constitutional injunction. No question of estoppel or waiver arises where the State lacks the constitutional power to enforce a rule which is
unconstitutional and thus ultra vires. Another Division Bench speaking through Shri R.S. Pathak (Latter Chief) Justice of India expressed the same
sentiments Abdul Wahid Khan's case 1971 Lab IC 773 and held in no uncertain terms that the State is not relieved of the obligation to comply
with the constitutional mandate merely because a person affected chose to exercise a particular option. A right to discriminate against cannot be
waived. See Omega Advertising Agency v. State Electricity Board, AIR 1982 Gauhati 37.
This petition is accordingly disposed of with a direction to the respondentauthorities to consider the claims of the petitioners for grant of grade to
the posts against which the petitioners are working. Let a decision be taken within a period of three months from the date copy of the order passed
by this Court is made available by the petitioners to the respondent authorities and also to the counsel who has put in appearance today on behalf
of the respondents. The decision so taken would be prospective in nature.
Disposed of as such.