Radha Krishna Ojha vs State of M.P. and Others

Hon. Shri Justice Sujoy Paul

In this petition filed under Article 226 of the Constitution of India, the petitioner has assailed the order dated 10.8.2005 whereby appointment on the post of skilled Black Smith was declined by the respondents. The petitioner preferred his candidature on the post of Black Smith. Admittedly, the essential educational qualification for the skilled post of Black Smith is prescribed in G.O.P. No. 81-98 dated 29.4.1998 (Annexure R-2). The qualification is prescribed in para 4. A perusal of this para shows that the candidate should be I.T.I. passed or Diploma from other school in the relevant trade. Admittedly, the petitioner does not have this qualification. When petitioner was not appointed alongwith other persons, he filed W.P. No. 2226/2003 before this Court. The said matter was decided by this Court alongwith W.P. No. 2365/2003. For the petitioner, the following direction was issued:

As far as petitioner Radha Krishha Ojha in W.P. No. 2226/03 is concerned, in case he applies, his case may be considered likewise or he may be granted opportunity to produce the requisite certificate or representation and after examining the same and considering his case in the light of action taken in other Battalion order be passed.

(Emphasis supplied).

Thereafter, the respondents passed the impugned order dated 10.8.2005 and stated that in the respondent Battalion nobody has been appointed as Black Smith, who does not have the qualification of I.T.I. The petitioner filed contempt petition which was registered as C.P. No. 604/05. By dismissing the contempt petition on 28.2.2006 (Annexure P-7), the liberty is reserved to the petitioner to assail the order dated 10.8.2005 in fresh proceedings. Consequently, the petitioner has filed the present writ petition against the order dated 10.8.2005 (Annexure P-1).

The only contention advanced by Shri D.S. Raghuvanshi is that certain other persons including one Shri Radhey Shyam has been appointed as Black Smith in First Battalion at Indore. This Court by order dated 29.4.2010 directed the I.G. Gwalior to file his affidavit to explain the aforesaid situation. In turn, Shri S.M. Afsal filed his affidavit and stated that the essential minimum qualification for the post of Black Smith is I.T.I. and petitioner is admittedly not having this I.T.I. qualification. So far Radhey Shyam aforesaid is concerned, it is stated that this Court did not cancel/set aside the appointment of Radhey Shyam and, therefore, he is continuing in service. He does not have the qualification of I.T.I. in the relevant trade.

Thus, the only question is whether petitioner is entitled to seek parity with Radhey Shyam, who admittedly does not have the essential/minimum educational qualification.

This is settled in law that Article 14 cannot be stretched to this extent to perpetuate or continue an illegality. Illegality cannot be permitted to be perpetuated by taking example of an illegal appointment. This is settled in law in view of judgment of Supreme Court reported in State of Jharkhand and Others Vs. Manshu Kumbhkar, in which the Apex Court held as under: Even otherwise, merely because mistake had been committed in one case, there is no rational for perpetuating that mistake, even when the same is illegally impermissible.

This Court is of the considered opinion that if petitioner does not have the essential qualification, no parity can be claimed from a person who does not fulfill the requirement of the said qualification. Parity is permissible with a person who is legally entitled to enjoy the benefit. In this view of the matter, I find no substance in the petition. It is accordingly, dismissed. No costs.