State of J&K and another vs Mohinder Nath Gupta Dr.and another

This appeal is directed against a judgment passed by a learned Single Bench of this Court (V.K. Gupta J, as his Lordship then was) on

31.1.1996 in SWP No. 607/94. Under the impugned order, writ petition was allowed and after passing a writ of mandamus, appellants were

directed to consider the petitioner for promotion to the post of professor (orthopaedics) exactly on the same line and analogy as was done in the

case of respondent No.2 (Dr. G.R. Mir) who was arrayed as respondent No.3 in the writ petition. The writ court also directed that all

consequential benefits be granted to the petitioner on similar lines. It was further directed that the writ petitioner would either be considered against

any available vacancy in the Department of Orthopaedic itself or if no vacancy was available at present in the Department of orthopaedics, against

any available vacancy of professor in Medical College Jammu, or on the occurrence or availability of next vacancy in the same College. The

relevant finding of the writ court is reproduced as under:

For the foregoing reasons this petition is allowed. Respondent No. 1 and 2 are issued a writ of mandamus and hence directed to consider the

petitioner for promotion to the post of professor (orthopaedics) exactly on the same lines, and analogy as was done in the case of respondent No.

3 and by according same parity to him as was done in his case. On being accorded consideration, the consequential orders shall be passed by

giving all benefits to the petitioner on similar and identical lines as was done in the case of respondent No. 3. The consideration shall be accorded

to the petitioner either against any available vacancy in the department of orthopeadics itself, or if no vacancy is available at present in the

department of orthopaedics, against any other available vacancy of professor in the Medical College Jammu or on the occurrence of availability of

next vacancy in the Medical College Jammu. Mr. S.K. Anand, learned GA at this stage submitted that the relief being given to the petitioner be

confined only to his consideration against a vacancy in orthopaedics, and not against a vacancy in any other Department/field.

The writ court again reiterated the same direction in the same judgment. This direction is also reproduced as under:

Since, however, this court is now trying to undo the damage already been inflicted upon the petitioner, the ends of justice can be served only if an

unequivocal direction is issued for the petitioner's consideration against any available vacancy in the Medical College, not confining consideration to

a vacancy in orthopaedics only. If the consideration is confined to a vacancy in orthopaedic and if no such vacancy actually is available in that

department, the nature of relief granted to the petitioner may ultimately turn out to be elusive. Based on the aforesaid reasoning and considerations

this petition is allowed. No order as to costs.

This order has been challenged by the appellant state on the following grounds:

1 That the order is quite against the spirits of law and traverses beyond the scope of judicial powers of the court. A person can be appointed only

on a post which is available in a department to which he belongs and not on any post other than those falling out side the department;

That the learned Single Bench has proceeded on an erroneous proposition of fact. Dr. G.R. Mir was directly appointed as Assistant Professor

vide Government order No.438HME of T981 dated 15.10.1981. Thereafter he was promoted to the post of Associate Professor in orthopaedics

in regular capacity vide Govt. order No.649HME of 1987 dated 18.2.1987 with effect from 3.2.1986. As far respondent No. 1 Dr. Mohinder

Gupta concerned he was adjusted as Associate Professor in orhtopaedics vide Govt. order No.442GR(HME) of 1990 dated 26.3. 990. This

Government order was passed pursuant to a direction issued by a single Bench of this court (K.K.. Gupta J, as hi lordship then was) on

20.12.1989, in O WP 86/89, subsequently a post of professor in orthopaedics Government Medical college Srinagar fell vacant to demise of Dr.

Ashai. As per seniority list of faculty numbers Dr. T.S, Sethi, who was the senior most, had already been adjusted on adhoc basis as professor,

The post was therefore, offered to two doctothers namely Dr. Deedar Singh and Dr. V.M. Soodam, who were asked to give their consent for

their adhoc promotion and adjustment against the post available at Srinagar. These doctothers respectively figured in the seniority list at S.No. 1

and 2. They gave no consent. Therefore, respondent No.3 (Dr. G.R.Mir), who was senior faculty member, was promoted for a period of six

months. His order of promotion was passed by the Government under Govt. order No.891HME of 1993 dated 6.12.1993. Because respondent

No. 1 figured below Dr. Mir, in the seniority list, therefore, offer could not be made to him. Subsequently two posts of professothers which had

become available in orthopaedics department were referred to the PSC/DPC for being filled up under rules. On the basis of merit and seniority,

the D.P.C. recommended Dr. T.S. Sethi and Dr. Deedar Singh. Dr. V.M. Soodan, who is undisputedly senior to .respondent No. 1 continued to

function as Associate professor. Meanwhile respondent No.2 Dr. Mir obtained a direction from the High Court that he should be considered for

the post of professor and should also be allowed to continue on the post which he was holding on stopgap arrangement. Dr. Mir continues to hold

the post under court orders.

We have heard the arguments advanced by either side. We have also gone through the judgment impugned. We would first like to clarify the

position with regard to the nature of appointment of respondent No.2 Dr. G.R.Mir as professor. Government order No.981 HME of 1993 dated

6.12.1993 appoints Dr. G.R.Mir on stopgap basis for a period of six months or till the vacancy is filled up by the PSC/DPC, which ever is earlier.

This appointment is also subject to the superior claim of his seniothers and with the condition that this arrangement shall not confer any right upon

him for regular appointment under rules. We for purposes of making the position clear, are reproducing the Government order as under:

Subject: Promotion of Dr. G.R.Mir, Associate professor (orthoapedics) Government Medical College. Srinagar. Government order No. 891

HME of 1992/ 1993. Dated 06/12/1993. Sanction is accorded to the promotion of Dr. G.R.Mir, Associate Professor (Orthopeadics)

Government Medical College, Srinagar as Professor (Orthopaedics) on stopgap basis for a period of six months or till the time the vacancy is filled

by the public service commission/DPC, whichever is earlier subject to the superior claim of his seniothers and with the condition that this

arrangement shall not confer any right on him for regular appointment as professor under rules. By order of the Government of Jammu and

Kashmir.

A bird's eye view of this order will show that Dr. Mir has not been appointed as professor on regular basis. His appointment is couched in so

many words. We can outline the features of this appointment as under:

i) This is only a stopgap arrangement for a period of six months or till the vacancy is filled up on regular basis, whichever is earlier, ii) The

appointment is subject to superior claim of his seniothers, if any;

iii) That the arrangement is definitely not to confer any benefit on Dr. Mir for appointment as Professor on regular basis.

It all implies that his regular appointment under rules is yet to be made.

Subsequently to the passing of this order Dr. Mir obtained a direction from a Bench of this court on 15.3.1995, seeking his continuation in the

arrangement till regular selection was made. Obviously the Government order dated 6.12.1993 must have formed basis of the writ petition of Dr.

Mir. Learned Single Bench while passing the impugned order neither took into consideration laid down in the Government order nor the fact that

the same was subjudice before the court. He proceeded to pass the impugned order on 31.1.1996building the whole edifice of the relief granted in

favour of the writ petitioner on basis of Government order dated 6.12.1993.

We are sure that the learned Single Bench has committed an error by making the order dated 6.12.1993 ,passed in favour of Dr. Mir, as basis

for equal treatment to the petitioner. Government order dated 6.12.1993 neither confers any absolute right on Dr. Mir nor has the same been put

to judicial scrutiny so far.

We are clear in our view that the concept of equality enshrined in Art.14 and 16 of our constitution is not blind but is a positive concept. An

action , in order to form basis of equality, must independently withstand the test of judicial scrutiny. A classification, with which parity is sought,

must be a valid classification and should be based on intelligible differentia. In common parlance they say, one wrong cannot justify another wrong.

This forms the pith and substance of the interpretation of the concept of equality in a matter like the one in hand. We are supported in our view by

an authoritative judgment of the Apex Court, reported in a case titled Gursharan Singh and others Vs New Delhi Municipal Committee and others,

AIR 1996 SC 1175. In this case the writ petitioners made a grievance that they were discriminated under Art. 14 of the constitution by not having

been given the same treatment which was meted out to some stallholders. Their lordships made the concept of equality clear and held that if

benefits are extended to some persons, in an irregular or illegal manner, such action cannot form the basis of seeking equal treatment by others. In

their lordships view if courts embark upon granting relief on such basis, then writ courts will be perpetuating illegality. Claim of equality must

necessarily be based on actions which are just and legal. Their lordships held as under:

Apart from that even if it is assumed that concession was shown to such stallholders by the N.D.M.C. the appellants cannot make grievance in

respect of discrimination under Article 14 of the constitution. Having agreed to the terms of allotment they cannot legitimately claim that they should

also be treated in the same manner. 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 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, the

others cannot invoke the jurisdiction of the High Court or this Court that the same irregularity or illegality committed by the State or an authority

which can be held to be a state within the meaning of Article 12.of the Constitution, 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 sanctioned by law in their favour on principles 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 denies to him. While it has been extended to

others and in this process there has been a discrimination. None of the 98 stallholders were impleaded as parties to the writ petitions. The

appellants questioned the validity of the allotment of 98 shops on concessional rates, without trade zoning restrictions in favour of the stallholders of

Panchkuian Road, but they were primarily interested that some concessions in respect of Licence fee and relaxation in trade zoning restrictions be

also extended to them. Any such claim on their behalf cannot be entertained on the basis of concept of equality before law as enshrined in Article

14 of the constitution.

The next fact of the order impugned is that it is based upon a statement tendered by Mr. S.K.Anand, Govt. Advocate. The appellantState is on

affidavit that the Government Advocate was never under instructions to take the stand reflected by the impugned order before the Court. Be that

as it may, we are clear on this point also. The statement of a Government advocate does not bind the Government. However, the position of the

Advocate General is entirely on a different footing. The power of the Advocate General is derived from Art. 165 of the constitution. The question

came up before the Apex Court in Periyar and Parrekanni Rubbers Ltd. vs State of Kerala, reported in AIR 1990 S.C 2192. Their lordships held

as under:

Any concession made by the Government Pleader in the trial court cannot bind the Government as it is enviously always unsafe to rely on the

wrong or erroneous or wanton concession made by the counsel appearing for the State unless it is in writing on instructions from the responsible

officer. Otherwise it would place undue and needless heavily burden on the public exchequer. But the same yardstick cannot be applied when the

Advocate General made a statement across the bar since the Advocate General makes the statement with all responsibility.

Testing the statement of Mr. Anand on the touchstone of the above referred judgment, we find out that the learned Single Bench has fallen into an

error in passing the direction on basis of a statement made by a Government pleader, whose statement could not bind the state.

The matter does not end here. Learned Single Bench has handed down a direction unknown to law. Even if the petitioner would have a castiron

case, he could have been considered for a post which was vacant or which would fall vacant in the cadre he belongs to. The direction that the

writpetitioner should be considered on any other post, outside the Department of Orthopaedics, available in Government Medical College, is

dehothers the rules. Separate cadres are maintained department wise and seniority is fixed accordingly.

A direction, as the one passed in this case by the writ court, may have the effect of causing prejudice to an unknown number of persons. This part

of the directions too annibus to hold good.

We accordingly allow this appeal and set aside the order impugned. However, as and when regular appointments to the post of Professothers are

required to be made in Orthopaedics Department, all eligible candidates, including the writpetitioner, if otherwise eligible, must be considered on

his own merits.