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2012 DIGILAW 339 (ALL)

RAGHUBANSH BIHARI JAUHARI v. STATE OF U. P.

2012-02-07

RAN VIJAI SINGH

body2012
JUDGMENT Hon’ble Ran Vijai Singh, J.—The petitioner claiming himself to be Excise Inspector, retired from service on 30.6.2007, has filed the present writ petition with the following prayer : (i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 11.12.2007 passed by the respondent No. 2, contained in Annexure 3. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to fix salary of petitioner at par with other Excise Inspector who were junior to petitioner and considering petitioner to have been promoted as Excise Inspector on 26.6.1995 and accordingly make payment of arrears of back wages and other retiral benefits, pension etc. (iii) Issue any other writ, order or directions, as this Hon’ble Court deems fit and proper in the circumstances of the case. (iv) Award the cost of writ petition in favour of the petitioners. 2. Vide order dated 11th December, 2007, the Deputy Excise Commissioner has rejected the representation of the petitioner dated 19.9.2007 which was made for demanding the notional promotion with all consequential benefits with effect from 26.6.1995. The demand was made on the ground that five persons namely Sri Badri Vishal Singh, Jai Prakash Singh, Virendra Kumar Pandey, Prem Chandra Dwivedi and Anand Gaur who were shown junior to the petitioner in the seniority list of 1992 were given promotion on the post of Excise Inspector, whereas the petitioner being senior in that seniority list was not promoted on the post of Excise Inspector. It appears that not only in the case of the petitioner, this type of illegalities have been committed through out the State and various representations have been filed, ultimately the matter went to the Apex Court. The Apex Court, vide order dated 14th September, 2000, has directed to revert those persons who have wrongly been promoted and further directed to prepare a fresh seniority list. Pursuant thereto, a fresh seniority list was prepared in the year 2001 to be more specific on 15.3.2001 in which petitioner has been shown senior to all those five persons with whom he is seeking parity. 3. It is also noticeable that after the judgment of the Apex Court, those five persons were reverted. Pursuant thereto, a fresh seniority list was prepared in the year 2001 to be more specific on 15.3.2001 in which petitioner has been shown senior to all those five persons with whom he is seeking parity. 3. It is also noticeable that after the judgment of the Apex Court, those five persons were reverted. However, they have challenged those orders through various writ petitions being Writ Petition No. 22512 of 2001, 28737 of 2001, 29139 (ss) of 2001, 27666 of 2001 and 2915 (ss) of 2001 and obtained interim order and on the strength of interim order, they continued and retired as an Excise Inspector. In the submissions of learned counsel for the petitioner, Writ Petition No. 27666 of 2001 was dismissed by this Court on 7.10.2010. However with respect to other, he submitted that he is unaware about the status of the other writ petitions. 4. So far as the petitioner’s case is concerned, after the reversion of all those five persons with whom the petitioner is seeking parity, the petitioner was given promotion on the post of Excise Inspector on 2.9.2004, against the substantive vacancy, with the date of his appointment, on the probation of two years. It is stated in the counter-affidavit that in the ministerial cadre on the post of Senior Assistant, the petitioner was given notional promotion with effect from 7.5.2006. 5. Sri Suresh Chandra Verma learned counsel for the petitioner submitted that five persons who were junior to the petitioner and they were illegally promoted on the post of Excise Inspector, are getting pension for the post of Excise Inspector whereas the petitioner has yet not been given pension for the post of Excise Inspector. 6. From perusal of the record, it transpires that the petitioner was promoted on 2.9.2004 on the post of Excise Inspector and he has not challenged this order praying that he should be given notional promotion with effect from 26.6.1995 since the date when the junior were promoted. The order dated 2.9.2004 has become final and the petitioner retired on that basis on 30th June, 2007 and after his retirement, the petitioner has made representation to the effect that he be paid salary and other post retiral dues as of Inspector w.e.f. 26.6.1995 from the date when his junior were promoted. The order dated 2.9.2004 has become final and the petitioner retired on that basis on 30th June, 2007 and after his retirement, the petitioner has made representation to the effect that he be paid salary and other post retiral dues as of Inspector w.e.f. 26.6.1995 from the date when his junior were promoted. I am of the view that once the petitioner has not challenged the order dated 2nd September, 2004 and the junior persons who were given illegal promotion on the post of excise inspector were reverted and the writ petition of some of them have been dismissed, perhaps there is no case to claim parity with those persons. 7. However it may be noticed that wrong grant of pension to somebody cannot be made basis for grant of pension to a person who is not entitled for the same in accordance with rule. In other words, the wrong orders cannot be made basis for extending benefits to the other. Therefore, there appears to be no discrimination as has been submitted by learned counsel for the petitioner. 8. In Gursharan Singh and others v. NDMC and others, JT 1996(1) SCC 647, the Apex Court held that “citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition.” The Apex Court has further observed that “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.” 9. 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.” 9. In Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others, JT 1996 (8) SC 387, the Apex Court held as under : “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. 10. In State of Haryana and others v. Ram Kumar Mann, JT 1997 (3) SC 450, the Apex Court observed as under : “The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e. benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously “No”. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right.” 11. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right.” 11. The Supreme Court has reiterated this view in the case of State of Bihar v. Kameshwar Prasad Singh and another, JT 2000 (5) SC 389. 12. In view of the aforesaid legal position, I am not inclined to interfere with the order impugned passed by the Deputy Excise Commissioner. 13. At this juncture, Sri S.C. Verma, learned counsel for the petitioner submitted that the petitioner has yet not been given pension. 14. Taking note of the submissions and considering the facts and circumstances of this case, it is provided that in case the petitioner has not been given pension, the respondents are directed to pay all post retiral dues on the post of Excise Inspector expeditiously preferably within a period of three months from the date of production of certified copy of the order of this Court. 15. With the above observations, the writ petition is disposed of. ——————