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2014 DIGILAW 974 (PAT)

Dwarika Das Pandey v. State Of Bihar

2014-09-10

ANJANA MISHRA, I.A.ANSARI

body2014
ORDER : I. A. ANSARI, J. By order, dated 12.02.2014, made in CWJC No. 11327 of 2013, a learned single Judge of this Court has declined to direct the respondents herein to consider the case of the present appellant for reversion, with all consequential benefits, to the cadre of General Constable from the cadre of Driver/Learner. 2. We have heard Mr. Shivendra Kishore, learned Senior Advocate for the appellant, and Ms. Nivedita Nirvikar, Government Pleader No. 10, appearing on behalf of the respondents. 3. The appellant, as petitioner, came to this Court, with an application made under Article 226 of the Constitution of India, praying for, inter alia, a direction to the respondents herein to consider the case of the petitioner, for reversion, with all consequential benefits, from the cadre of Driver/Learner to the cadre of General Constable in the light of order passed in the case of other similarly situated persons including, according to the appellant, Umesh Singh, who has been reverted to the cadre of General Constable, in the light of order, dated 03.08.2010, passed in CWJC No. 1708 of 2010. 4. Before dealing with the ground of challenge to the order, dated 12.2.2014, aforementioned, which stands impugned in this appeal, the case of the petitioner appellant may, in brief, be described as under:- (i) The appellant herein was appointed, on 6.9.1981, as a Constable in the cadre of General Constable in the district of Nalanda. By order, dated 18.11.1984, the then Superintendent of Police, Nalanda, transferred the petitioner’s services from the cadre of General Constable to the cadre of Driver/Learner; but on the request of the appellant, the appellant was reverted, vide order, dated 29.8.1988 from the cadre of Driver/Learner to the cadre of General Constabale. (ii) By order, dated 22.09.2006, the appellant was, however, transferred to the office of HQRT, Patna, showing him to be a Driver/Learner, though the appellant continued to work, according to the appellant, as a Constable in the cadre of General Constable. 5. As already indicated above, with a prayer, inter alia, to issue direction to the respondents herein to consider the case of the appellant for reversion to the cadre of General Constables from the cadre of Driver/Learner with all consequential benefits, a writ petition was made under Article 226 of the Constitution of India, which gave rise to CWJC No. 11327 of 2013. In the writ petition, the appellant placed reliance on order, dated 03.08.2010, passed in CWJC No. 1708 of 2010 (Umesh Singh vs. The State of Bihar and Others). 6. The learned single Judge did not, however, find that the appellant was entitled to the reliefs, which he had sought for, and, hence, the writ petition was dismissed. This appeal has, now, been preferred by the writ petitioner. 7. While considering the present appeal, it needs to be noted that it is the specific stand of the respondents, which could not be assailed before us, that there is no provision, under any of the Rules, relating to the recruitment and conditions of service of Constables nor is there anything in the Police Manual providing for reversion of a Constable from the Cadre of Driver/Learner to the cadre of General Constable. Reliance has, however, been placed, as indicated above, on the order, dated 03.08.2010, passed in the case of Umesh Singh (supra). 8. It needs to be noted that in the case of Umesh Singh (supra), though Umesh Singh had been appointed, as a Constable, in the cadre of Driver/Learner, he wanted to be appointed, as a Constable, in the cadre of General Constable and with a prayer made, in this regard, he filed a writ petition, which gave rise to CWJC No. 1708 of 2010. The writ petition was resisted by the respondents herein on the ground that there was no provision, under the relevant Rules or the Police Manual, making it permissible to convert a Constable from the cadre of Driver/Learner to the cadre of General Constable. The learned single Judge, in Umesh Singh (supra), upheld the objection of the respondents that the writ petition needed to be dismissed. While dismissing the writ petition, the learned single Judge, however, observed and also directed as under:- “It however issues a mandamus to the respondents that they have a constitutional obligation to treat all employees similarly situated in like manner and they cannot discriminate between persons similarly situated which is violative of Article 14 of the Constitution of India. The respondents are directed to reexamine all such cases referred to by the petitioner in the writ petition of conversion from the cadre of Driver Constable to General Constable which the respondents in their own counter affidavit have stated is not permissible in law. The respondents are directed to reexamine all such cases referred to by the petitioner in the writ petition of conversion from the cadre of Driver Constable to General Constable which the respondents in their own counter affidavit have stated is not permissible in law. Let appropriate action in accordance with their own stand be taken by the respondents within a maximum period of three months from the date of receipt/production of copy of this order. The respondents are cautioned to do so in accordance with law after show cause and not to pass orders in a manner sanguine that they shall immediately be upset by this Court. The writ application stands disposed.” (Emphasis is added) 9. From the observations made, directions given, in Umesh Singh’s case (supra), we do not find any mandamus having been issued by the Court to appoint Umesh Singh (who was the writ petitioner), to the cadre of General Constable. The direction, rather, was to the effect that all the cases of persons, situated as Umesh Singh, shall be re-examined in the light of the relevant law and necessary action shall be taken accordingly by the respondents. 10. Considering the fact that the appellant, as writ petitioner, has put to challenge the decision not to revert him to the cadre of General Constable with all consequential benefits, to the cadre of Driver/Learner, it needs to be borne in mind that an illegality cannot be allowed to be perpetuated in the name of removing discrimination. The mere fact that an authority has passed a particular order in the case of another person, similarly situated, cannot be a ground for issuing a writ in favour of a petitioner on the plea of removing discrimination if the order, passed in favour of the other person, is found to be contrary to law or not warranted in the facts and circumstances of a given case. 11. The test, therefore, shall be as to whether the order, which has already been passed in favour of a particular person, is legally sustainable or not and it is only if the order is found to be legally sustainable that the Court may direct similar order to be passed for the purpose of removing discrimination. 11. The test, therefore, shall be as to whether the order, which has already been passed in favour of a particular person, is legally sustainable or not and it is only if the order is found to be legally sustainable that the Court may direct similar order to be passed for the purpose of removing discrimination. When, however, the order, passed in favour of a particular person, is not legally sustainable, it is not permissible for a Court to pass any direction for similar orders, in another case, in the name of removing discrimination, for, such a direction by a Court would amount to perpetuating illegality and not removing discrimination. 12. Noticing that the High Courts, in exercise of their writ jurisdiction, have been passing orders to remove discrimination and thereby asking the authorities concerned to repeat illegalities, the Supreme Court has expressed its anxiety on such an approach and has laid down the proposition of law, in no uncertain words, in Chandigarh Administration and Another v. Jagjit Singh and Another, reported in (1995) 1 SCC 745 , as follows: 8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come-across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent authority has passed a particular order in 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 allowed 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 cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat the illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law-in-deed, wherever, it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such please would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case, than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and illegal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial word. What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises. (Emphasis is supplied) 13. From the observations, made in Jagjit Singh (supra), it becomes more than abundantly clear that in the name of removing discrimination, no Court can issue a direction, which would amount to perpetuating an illegality. 14. If, therefore, a person, appointed as a Constable in the cadre of General Constable, cannot be reverted to the cadre of Driver/Learner and vice versa, it would be impermissible for any Court to issue a direction for reversion on the ground that similar order of reversion had already been passed in the past. 15. What logically follows from the above discussions, is that if a Constable cannot be directed to be reverted from the cadre of Driver/Learner to the cadre of General Constable and vice versa, no judicial order can be passed directing such reversion. 16. In the case at hand, when there is, admittedly, no provision for reversion of a person from the cadre of Driver Constable to the cadre of General Constable or vice versa, it logically follows that the appellant was not entitled to the reliefs, which he had sought for. No direction could have, therefore, been given in favour of the present appellant to be reverted to the cadre of General Constable from the cadre of Driver/Learner 17. We do not, therefore, find that the impugned decision, which the learned single Judge, eventually, reached, calls for any interference by this Court. 18. Because of the fact that we find that this appeal is completely devoid of merit, we dismiss the appeal. We do not, therefore, find that the impugned decision, which the learned single Judge, eventually, reached, calls for any interference by this Court. 18. Because of the fact that we find that this appeal is completely devoid of merit, we dismiss the appeal. 19. No order as to costs.