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2015 DIGILAW 1564 (HP)

Mamta Devi v. Union of India

2015-10-27

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan J. By medium of this petition, the following reliefs have been prayed for:- “(i) That writ in the nature of certiorari may kindly be issued, whereby quashing and setting aside the impugned office order dated 20.03.2013 issued by the respondent No. 2, Annexure P-4, being illegal and arbitrary. (ii) That the respondents may kindly be directed to consider the case of the petitioner by giving/inserting the marks in the column of Capability to provide land and infrastructure/facilities (Max.35), in the statement of the performance of candidates, Annexure P-2, in which, no mark has been given to the petitioner for the offered plot i.e. Khasra No. 1761/1, 3353/1, 1758/1, 3352/1758/1, 3349/1754/1, situated in Mohal Kummi, Tehsil Sadar, District Mandi, H.P.” 2. It is the case of the petitioner that her application for the establishment of Kisan Sewa Kendra (KSK) retail outlet in rural areas was rejected by the committee pointing out that the property offered for setting up of KSK was not suitable due to intersection at a distance of 60 meters from the offered plot as against the IRC (Indian Road Congress) 2009 norms, which prescribe minimum distance of 100 meters from the road intersection. The petitioner has challenged rejection of her case on various grounds, as taken in the memo of petition. 3. Respondents have filed their reply, wherein they have extensively referred to the selection guidelines in order to justify their action. I have heard the learned counsel for the parties and have also gone through the records of the case. 4. Learned counsel for the petitioner vehemently argued that the IRC guidelines themselves have no statutory value and therefore, cannot be enforced. I am not impressed by such submissions, for the simple reason that even if the guidelines have no statutory value, it may not give a vested right to any third party to complain a breach of guidelines, calling for any interference by this Court. However, the guidelines shall be taken as valid and rejection if made on the basis of such guidelines, then the Court would normally not interfere, especially when the decision is backed by an appraisal of the situation in light of the guidelines. However, the guidelines shall be taken as valid and rejection if made on the basis of such guidelines, then the Court would normally not interfere, especially when the decision is backed by an appraisal of the situation in light of the guidelines. Judicial intervention would be possible only where the guidelines itself are shown to be arbitrary and without any relevance for issue of safety or other parameters that may go into reckoning for the location of a retail outlet. Since there is no challenge to the guidelines itself to be arbitrary, this Court cannot take a decision rendered on the basis of guidelines to be not justified. 5. The only other argument available with the petitioner is that the respondents have themselves allotted outlets to various persons whose distance is in contravention to the IRC 2009 where retail outlets of not only less than the prescribed distance, but even far less than what was available in the case of the petitioner have been sanctioned. 6. I am not impressed with this argument, for the simple reason that the petitioner cannot claim negative parity for grant of benefit, merely because some benefit is incorrectly or wrongly granted to other persons. The claim of parity does not apply to a wrong decision. 7. In State of Haryana and others Vs. Ram Kumar Mann, (1997) 3 SCC 321 , it was held that a wrong order cannot be the foundation for claiming equality. It was further held that a wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality and two wrongs can never make a right. It was also held that a right agitated before the Court must be founded upon enforceable right to entitle one to the equality treatment for enforcement thereof. It is apt to reproduce para 3 of the judgment, which reads thus:- “3. The question, therefore, is whether the view taken by the High Court is correct in law. It is seen that the respondent had voluntarily resigned from the service and the resignation was accepted by the Government on 18.5.1982. It is apt to reproduce para 3 of the judgment, which reads thus:- “3. The question, therefore, is whether the view taken by the High Court is correct in law. It is seen that the respondent had voluntarily resigned from the service and the resignation was accepted by the Government on 18.5.1982. On and from that date, the relationship of employer and the employee between the respondent and the State ceased and thereafter he had no right, whatsoever, either to claim the post or a right to withdraw his resignation which had already become effective by acceptance on 18-5-1982. It may be that the Government for their own reasons, had given permission in similar case, to some of the employees mentioned earlier, to withdraw their resignations and had appointed them. 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 similar circumstanced person claim equality under Section 14 for reinstatement? 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 for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle lion to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never made a right. Under these circumstances, the High Court was clearly wrong in directing reinstatement of the respondent by a mandamus by a mandamus with all consequential benefits.” 8. In National Institute of Technology Vs. Two wrongs can never made a right. Under these circumstances, the High Court was clearly wrong in directing reinstatement of the respondent by a mandamus by a mandamus with all consequential benefits.” 8. In National Institute of Technology Vs. Chandra Shekhar (2007) 1 SCC 93 , the Hon’ble Supreme Court after placing reliance upon the judgment of State of Haryana Vs. Ram Kumar (supra) and lot of other judgments, has held that a wrong decision by the Government would not give a right to enforce a wrong order and claim parity or equality. The relevant portion of the judgment reads as under:- “10. Merely because in some cases the norms may not have been followed that cannot be a ground to hold that departure from norms should be continued. There are serious allegations about respondent having manipulated and fabricated documents to substantiate his stand. We need not go into these allegations. But as has been fairly accepted by the learned counsel for the respondent, there is no official communication from IIT Madras to support the respondent's stand that he was asked by the authorities of the said institute not to attend the programme. There should have been some material to support the stand. Unfortunately, for the respondent there is none. On the other hand admittedly after April, 2005 the respondent had abandoned the programme. It is also on record that the appellant notwithstanding these facts had asked the respondent to report back to IIT, Madras to continue studies in terms of High Court's direction. But that does not seem to have been done by the respondent.” 9. In State of Punjab & others Vs. Col. Kuldeep Singh, AIR 2010 SC 1937 , the Hon’ble Supreme Court held that Article 14 of the Constitution of India does not envisage for negative equality and is not meant to perpetuate illegality or fraud. Article 14 of the Constitution has a positive concept. Equality cannot be claimed in illegality and therefore, cannot be enforced by a citizen or Court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial Forum, others cannot invoke the jurisdiction of higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial Forum, others cannot invoke the jurisdiction of higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order. A wrong order/decision in favour of a particular party, does not entitled any other person to claim benefit on the basis of wrong decision. It is apt to reproduce para 14 of the judgment, which reads thus:- “14. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Administration & Anr. V. Jagjit Singh & Anr., AIR 1995 SC 705 : (1995 AIR SCW 493); Smt. Sneh Prabha Vs. State of U.P. & Ors., AIR 1996 SC 540 : (1995 AIR SCW 4449); Jalandhar Improvement Trust Vs. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306 : (2000 AIR SCW 2389); Union of India & Ors. Vs. Rakesh Kumar, AIR 2001 SC 1877 : (2001 AIR SCW 1458); Yogesh Kumar & Ors. Vs. Government of NCT Delhi & Ors. AIR 2003 SC 1241 : (2003 AIR SCW 1630); Union of India & Anr. V. International Trading Company & Anr, AIR 2003 SC 3983 : (2003 AIR SCW 2828); M/s Anand Button Ltd. Vs. State of Haryana & Ors. AIR 2005 SC 565 ; (2005 AIR SCW 67); K.K. Bhalla Vs. State of M.P. & Ors. AIR 2006 SC 898 : (2006 AIR SCW 345); and Maharaj Krishan Bhatt & Anr. Vs. State of Jammu & Kashmir & Ors. (2008) 9 SCC 24) : (AIR 2009 SC (Supp) 615 : 2008 AIR SCW 5421).” 10. Now adverting back to the facts, it would be noticed that the land offered by the petitioner was not found suitable, since there is a road intersection at the distance of 60 meters from the offered plot/land. Clause 4.5.1 (ii) of the IRC 12-2009 reads thus:- “4.5.1 Non-Urban (rural stretches) xxxxxxxxxxxxxxxxxxxxxxxxxxxxx 2) Hilly/Mountainous Terrain: (i) intersection with NHs/SHs/MDRs 300m (ii) Intersection with all other roads and tracks 100 m” 11. It was not even disputed by the learned counsel for the petitioner that the very purpose of prescribing 100 meters of distance is to ensure safety. Clause 4.5.1 (ii) of the IRC 12-2009 reads thus:- “4.5.1 Non-Urban (rural stretches) xxxxxxxxxxxxxxxxxxxxxxxxxxxxx 2) Hilly/Mountainous Terrain: (i) intersection with NHs/SHs/MDRs 300m (ii) Intersection with all other roads and tracks 100 m” 11. It was not even disputed by the learned counsel for the petitioner that the very purpose of prescribing 100 meters of distance is to ensure safety. If that is so, the petitioner has no reason to complain. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their costs.