JUDGMENT & ORDER : This is a petition under Article 226 of the Constitution of India praying for issuance of a writ of mandamus or any other appropriate writ or direction or order directing the respondents to issue appropriate order by which the petitioner’s promotion to the post of Lecturer of Higher Secondary School would be protected with effect from the date of his promotion for all purposes including retiral benefits. 2. Heard Mr. RK. Nokulsana, learned senior counsel appearing for the petitioner and Ms. Ch. Sundari, learned G.A. appearing for the respondents. 3. The facts of the case are as follows : That, the petitioner entered in the government service as a Graduate Teacher and was posted at Tengkonjang Higher Secondary School. But in the year 1999 vide order No. 2/1-39/99- ED(S), dated 13.12.1999 of the Director Education(S), Government of Manipur, he was directed to look after the day-today administration of the school till an alternative arrangement was made. Thereafter, he was given the charge of Principal of the same Higher Secondary School vice Shri N. Shyam Singh as stop get arrangement till alternative arrangement was made in public interest vide order No. 3/22/97-SE/(H/S), dated 25.04.2001 issued by the Joint Secretary, Education (S), Government of Manipur. In the meanwhile, the petitioner approached the Hon’ble Gauhati High Court through a writ petition being W.P.(C) No. 1493 of 2001 praying for a direction to the respondents to give him the scale of pay of the Principal of the Higher Secondary School w.e.f. 25.04.2001 till such time he is allowed to hold the charge of Principal of the school. The Hon’ble High Court allowed his petition and in compliance of the same, the Government of Manipur issued an order dated 27.03.2002, No. 12(HC)/312/2002-SE(S) allowing the petitioner to enjoy the scale of Principal of Higher Secondary School with other allowances admissible under rule w.e.f. 25.04.2001 till such time he is allowed to hold the post of Principal of the Higher Secondary School. The Government order is given here below : Annexure – A/3 GOVERNMENT OF MANIPUR SECRETARIAT : EDUCATION DEPARTMENT (SCHOOL SECTION) ORDERS BY THE GOVERNOR : MANIPUR Imphal, the 27th March, 2002 No. 12/(HC)/312/2002-SE(S) : Whereas, Shri K.G. Lansingpou Asstt. Graduate Teacher was allowed to function as Principal in charge of Tengkonjang Hr. Sec. School vide order No. 3/22/97-SE(H/S) dt. The Government order is given here below : Annexure – A/3 GOVERNMENT OF MANIPUR SECRETARIAT : EDUCATION DEPARTMENT (SCHOOL SECTION) ORDERS BY THE GOVERNOR : MANIPUR Imphal, the 27th March, 2002 No. 12/(HC)/312/2002-SE(S) : Whereas, Shri K.G. Lansingpou Asstt. Graduate Teacher was allowed to function as Principal in charge of Tengkonjang Hr. Sec. School vide order No. 3/22/97-SE(H/S) dt. 25-4- 2001 and Whereas, Shri K.G. Lansingpou obtained an order of the Hon’ble Gauhati High Court on 1-10-2001 in W.P.(C) No. 1493 of 2001 directing the respondents that “I direct the respondents/authority concerned to afford the Grade Scale of pay and allowances attached to the post of Principal of Higher Sec. School to the present writ petitioner namely, K.G. Lansingpou for the period from 25-4-2001 till the date he is allowed to hold the charge of Principal of the said Higher Secondary School by issuing necessary order in the matter and this shall be done within a period of one month from the date of receipt of this order.” Now, therefore, the Governor of Manipur is pleased to order that Shri K.G. Lansingpou is allowed to enjoy the scale of Principal of Higher Secondary School with other allowances admissible under rule w.e.f. 25-4-2001 till such time he is allowed to hold the charge of Principal of the said Higher Secondary School . This is issued in compliance with the directive of the Hon’ble Court passed on 1-10-2001 in W.P.(C) No. 1493 of 2001. By orders & in the name of the Governor, Sd/- Deputy Secretary, Education (S) Government of Manipur” 4. In the year 2012 the petitioner was appointed to the post of Lecturer of Higher Secondary School on promotion under the Department of Education (S), Manipur along with other 56 (fifty six) Graduate Teachers vide order No. 4/10/2011-SE(S), dated 16.06.2012 of the Education (School Section), Government of Manipur. At the same time, the petitioner was posted at Recent Higher Secondary School. At the same time, the petitioner was posted at Recent Higher Secondary School. The appointment order along with his posting annexed as Annexure, A/5 to the petition is reproduced here below : “Annexure, A/5 GOVERNMENT OF MANIPUR SECRETARIAT : EDUCATION DEPARTMENT (SCHOOL SECTION) ORDERS BY THE GOVERNOR : MANIPUR Imphal, the 16th June, 2012 No. 4/10/2011-SE(S) : On the recommendation D.P.C. held on 08.05.2012 in association with the M.F.S.C. and with their concurrence under their letter No. 8-A/44/2011-MPSC(P) dated 11th May, 2012 – the Governor of Manipur is pleased to appoint on promotion 58 (fifty eight) Graduate Teachers (Listed as “ANNEXURE “A” in order of merit to the post of Lecturer of Higher Secondary School under the Department of Education (S), Manipur in the scale of pay of PB – 2 Rs. 9,300/- - 34,800/- + AGP (Academic Grade Pay) Rs. 4800/- p.m. plus other allowances as admissible under Rules with immediate effect. 2. They shall be on probation for a period of 2 (two) years. 3. On being promoted to the post of lecturer they have been posted at Higher Secondary Schools shown against their names as at “ANNEXURE – “B”. 4. The appointment on probation in respect of the employees under (Sl. No. 34) S. Kunjarani Devi (Manipuri), (Sl. No. 37) Md. Ataullakhan (History), (Sl. No. 43), A. Dhaneswori Devi (Manipuri) shall be subject to the outcome of the verification report of the Committee constituted under Govt. order No. 12(H/C)/90/2009-SE(S) dated 22-3- 2012. By orders & in the name of Governor, Sd/- Deputy Secretary (Edn/S), Government of Manipur ANNEXURE – “A” Sl.No. Name Subject 1. ……. ……… …. ……… ……. 46 K.G. Langshing Pou (ST) English ……. ………. ………. 57 ………. ……… ANNEXURE – “B” Sl. No. Name & former place of posting EIN Designation Subject New place of posting … ………. …… ……….. …….. ……….. 16. K.G. Lanshing Pou, Tengkonjang Hr. Sec. School 059819 Lecturer English Recent Hr. Sec. School …. ……… …….. ……… ……. ….. 16. K.G. Lanshing Pou, Tengkonjang Hr. Sec. School 059819 Lecturer English Recent Hr. Sec. School …. ……… …….. ……… ……. ….. However, the petitioner continued to serve in the same school i.e. Tengkonjang Higher Secondary School. 5. …….. ……….. 16. K.G. Lanshing Pou, Tengkonjang Hr. Sec. School 059819 Lecturer English Recent Hr. Sec. School …. ……… …….. ……… ……. ….. 16. K.G. Lanshing Pou, Tengkonjang Hr. Sec. School 059819 Lecturer English Recent Hr. Sec. School …. ……… …….. ……… ……. ….. However, the petitioner continued to serve in the same school i.e. Tengkonjang Higher Secondary School. 5. The case of the petitioner as submitted by his learned counsel is as follows : That, soon after the issuance of the promotion order dated 16.06.2012, the petitioner prepared to join his new post of Lecturer at the Recent Higher Secondary School. But, since there was nobody to relieve him and to release him, he continued to serve in the same school. Therefore, he apprised the higher authorities on the matter including the Director of Education (S), Government of Manipur who advised him to remain as Principal-in-charge of the same school till alternative arrangement is made. He was, however, assured that his service as Lecturer would be protected from the date of his appointment to that post as was done in the case of others. But so far no appropriate order has been issued by which he can be assured that he has been or would be given the benefit of his promotion to the post of lecturer of Higher Secondary School. That, in the case of similarly situated persons in the same department there has been instances where protection of service has been given. As an example, the learned counsel cited the case of one, Shri K. Tiken Singh who was promoted to the post of Principal of Government Higher Secondary School on pro-forma basis vide Government order No. 7/5/2013-SE/(H/S)/Pt, dated 02.06.2015 and was given the pay scale and all the allowances of principal but was retained as Controller of Examination of the Board of Secondary Education, Manipur, the post to which he was posted on deputation. After having cited the above instance the learned Counsel submitted that in view of the facts and circumstances under which the petitioner has been retained in his place of posting even after his promotion to the post of lecturer there is no reason why he should also not be given the same treatment. After having cited the above instance the learned Counsel submitted that in view of the facts and circumstances under which the petitioner has been retained in his place of posting even after his promotion to the post of lecturer there is no reason why he should also not be given the same treatment. A copy of the order filed in support of the submission (Annexure, A/6 to the petition) is reproduced here below : “Annexure – A/6 GOVERNMENT OF MANIPUR SECRETARIAT : EDUCATION DEPARTMENT (SCHOOL SECTION) ORDERS BY THE GOVENOR : MANIPUR Imphal the 2nd June, 2007 No. 7/5/2013-SE(H/S) Pt : The Governor of Manipur is pleased to appoint Shri K. Tiken Singh, Senior Lecturer of Higher Secondary School who is presently on deputation as Controller of Examination of the Board of Secondary Education, Manipur to the post of Principal of Government Higher Secondary Schools in the scale of pay of Rs. PB-3 Rs. 15,6000 – 39,100 + GP (Grade Pay) Rs. 6600 p.m. and other allowances as admissible under the Rules on pro-forma basis with effect from 24th March, 2015. By orders & in the name of Governor, Sd/- Deputy Secretary (Edn/S), Government of Manipur” The learned counsel also submitted that one, Mr. L. Biren Singh, Senior Lecturer of Model Higher Secondary School was transferred and posted as Vice Principal-in-charge (I/C) at Tengkonjang Higher Secondary School in his grade pay without any extra remuneration vide Government order No. 3/22/97- SE(H/S) dated 21.03.2007 (Annexure-A/7 to the writ petition) but, he never joined the school and instead his transfer order was cancelled by an another order issued by the Government being No. 3/22/97-SE(H/S), dated 14.06.2007 (Annexure, A/4 to the writ petition). The said orders are reproduced here below respectively: “Annexure-A/7 GOVERNMENT OF MANIPUR SECRETARIAT : EDUCATION DEPARTMENT (SCHOOL SECTION) ORDERS BY THE GOVENOR : MANIPUR Imphal the 21st March, 2007 No. 3/22/97-SE(H/S) : In supersession of all previous orders in this regard, the Governor of Manipur is pleased to order the transfer and posting of Shri L. Biren Singh, Sr. Lect(History) of the Model Hr. Sec. School is hereby transferred and posted as Vice-Principal (i/c) of the Tengkonjang Hr. Sec. School in his grade/pay without any extra remuneration with immediate effect and until further orders in public interest. Lect(History) of the Model Hr. Sec. School is hereby transferred and posted as Vice-Principal (i/c) of the Tengkonjang Hr. Sec. School in his grade/pay without any extra remuneration with immediate effect and until further orders in public interest. Further on assuming the charge as such the Vice-Principal (i/c) is also hereby allowed to look after the works of Principal of the said Hr. Sec. School till an alternative arrangement is made. By order & in the name of Governor, Sd/- (Commissioner, (Edn./S). Govt. of Manipur” “Annexure-A/4 GOVERNMENT OF MANIPUR SECRETARIAT : EDUCATION DEPARTMENT (SCHOOL SECTION) ORDERS BY THE GOVENOR : MANIPUR Imphal the 14th June, 2007 No. 3/22/97-SE(H/S) : The Governor of Manipur is pleased to order that the Government orders of even number dated 21.03.2007 and dated 5.5.2007 regarding transfer and posting of Lecturer to Tengkonjang Higher Secondary School are hereby cancelled with immediate effect. Further also order that the status-quo ante prevailing the said School before issue of the above order dated 21.03.2007 will remain unchanged/stand till an alternative arrangement is made in public interest. By order & in the name of Governor, Sd/- (Secretary (Edn./S). Govt. of Manipur” The learned Counsel further submitted that though such attempts have been made to bring some other people to the Higher Secondary School where he has been serving, so far no one has come due to the remoteness of the place, as such he has been compelled to continue to remain there. 7. That though, in view of the facts and circumstances, the petitioner has continued to serve in the same school i.e. Tengkonjang Higher Secondary School the respondents have not issued appropriate order which will protect his service as Lecturer and ensure his pensionary benefits as Lecturer as it is done in the case of others. Therefore, the petitioner submitted a representation dated 05.12.2015 to the Secretary, Education (S), Government of Manipur through proper channel praying for the same. However, the said representation has not been considered and disposed so far. So, the petitioner has been compelled to come to this Court with the prayer mentioned above. 8. The learned counsel continued and submitted that the petitioner has been compelled to continue serving in the place where he has been since no reliever was sent, no release order was issued in the interest of the school and since he was instructed by the Director to stay on. 8. The learned counsel continued and submitted that the petitioner has been compelled to continue serving in the place where he has been since no reliever was sent, no release order was issued in the interest of the school and since he was instructed by the Director to stay on. Besides, it is not because of his own interest or for any vested interest that he continued in the same school. Therefore, in such case the High Court in exercise of the powers conferred under Article 226 of the Constitution can pass appropriate order/direction by moulding relief as is deemed necessary to meet the ends of justice. The learned counsel cited the case of “RBF RIG CORPORATION, MUMBAI –v- COMMISSIONER OF CUSTOMS (IMPORTS), MUMBAI” reported in (2011) 3 SCC 573 . The relevant portions referred to are as follows : “19. Article 226 of the Constitution confers powers on the High Court to issue certain writs for the enforcement of fundamental rights conferred by Part III of the Constitution or for any other purposes. The question, whether any particular relief should be granted under Article 226 of the Constitution, depends on the facts of each case. The guiding principle in all cases is promotion of justice and prevention of injustice. 20. In Comptroller and Auditor-General of India v. K.S. Jagannathan this Court has held : (SCC pp. 692-93, para 20) “20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a stature or a rule or a policy decision of the Government or has exercised such discretion malafide or on irrelevant considerations or by ignoring the relevant considerations and materials on in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court, can in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass order and give directions to compel the performance of in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. 21. In Dwarka Nath v. ITO this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts to reach injustice wherever it is found and to mould the reliefs to meet the peculiar and complicated requirements of this country.” 9. It is submitted by the learned counsel for the respondents that the petitioner does not deserve to be given service protection and the pay and allowances of a lecturer of Higher Secondary School since he did not join the post to which he was promoted and posted, and since he has not shown any document showing that he was permitted or advised to continue in his posting by the competent authority of the Department. In fact not joining the post to which he was posted amounts to disobedience or indiscipline on his part. Further, the learned counsel also submitted that if the petitioner wants his service in the post of lecturer to be protected and to be given the pay and allowances of that post he has to first join the post to which he was promoted. But having not done so, he cannot claim service protection in that post and entitlement to the pay and allowances of such post. The learned counsel for the respondents also submitted that the petitioner, though he was promoted on 16.06.2012, approached the authority concerned for redressal of his grievance only on 05.12.2015, that is after 3 (three) years, which shows lack of promptness on his part, therefore, he does not deserve any favourable consideration. The learned counsel for the respondents also submitted that the petitioner, though he was promoted on 16.06.2012, approached the authority concerned for redressal of his grievance only on 05.12.2015, that is after 3 (three) years, which shows lack of promptness on his part, therefore, he does not deserve any favourable consideration. Lastly, the learned counsel submitted that the petitioner cannot claim the benefit given to other similarly situated persons in the department as the benefit given to others were not as per the law and therefore, cannot be followed to perpetuate illegality in the administration. In support of her submission, the learned counsel cited the case of State of Kerala and Others Versus K. Prasad and Another reported in (2007) 7 Supreme Court Case 140. The relevant portion of the judgment cited by the learned counsel is given here below: “13. We may now deal with the plea of the respondents that they have been discriminated against. It is true that Article 14 of the Constitution embodies a guarantee against arbitrariness but it does not assume uniformity in erroneous actions or decisions. It is trite to say that guarantee of equality being a positive concept, cannot be enforced in a negative manner. To put it differently, if an illegality or irregularity has been committed in favour of an individual or even a group of individuals, others, though falling in the same category, cannot invoke the jurisdiction of the writ courts for enforcement of the same irregularity on the reasoning that the similar benefit has been denied to them. Any direction for enforcement of such claim shall tantamount to perpetuating an illegality, which cannot be permitted. A claim based on equality clause has to be just and legal. 14. Dealing with such pleas at some length, this Court in Chandigarh Admn. V. Jagjit Singh has held that : (SCC p. 750, para 8) “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 [under Article 226] cannot be exercised for such a purpose.”(emphasis in original) This position in law is well settled by a catena of decisions of this Court. (See Secy., Jaipur Development Authority v. Daulat Mal Jain and Ekta Shakti Foundation v. Govt. of NCT of Delhi.) It would thus, suffice to say that an order made in favour of a person in violation of the prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities. 15. Adverting to the facts of the two cases stated hereinabove, we are of the considered view that having been made aware of the fact that the relied upon orders of upgradation had been passed in utter disregard of the statutory rules, the Division Bench fell in grave error in importing the theory of discrimination, particularly when the respondents’ applications seeking upgradation, were per se not as per the prescribed procedure. 16. We are, therefore, of the opinion that the Division Bench was not justified in directing the State Government to accord the same treatment which had been given to two other schools, which had been upgraded ignoring the statutory rules and upgrade the respondents’ schools. In this view of the matter, decision of the High Court is clearly unsustainable and deserves to be set aside. 17. In the result, the appeal is allowed, the judgment of the Division Bench is set aside and both the writ petitions are dismissed. There will, however, be no order as to costs. 10. From the facts and circumstances of the case, it is difficult to imagine how a person promoted to a higher post would forego his promotion to higher post and stay back in a lower post and that too, in such a remote place unless he was advised or asked or directed to do so by the higher or competent authorities in the department. It is true the petitioner has no document by which it would be shown that he was retained in his posting by the authorities concerned. It is true the petitioner has no document by which it would be shown that he was retained in his posting by the authorities concerned. But he has a valid answer to that, that is no reliever to relieve him was sent, and no release order was issued for his movement to join his new post and none of those who were transferred to the School he has been serving ever join as their transfer orders were either recalled or cancelled as such, he was advised by the Director of the Department to continue there. This submission of the petitioner has more weight-age and credence because he could not have just left his position without a reliever being sent and without a release order from a competent authority since he was the head of the institution. In the promotion order dated 16.06.2012, at Annexure A/5 of the petition, which is also reproduced and given at page No. 4 of this judgment, nothing is mentioned there about the period of joining, and as to who will relieve the petitioner. Normally, when transfer orders or promotion orders are issued, joining period is given except in emergency cases, when it is stated in the order itself that such order will have immediate effect. It is also usually mentioned as to who will relieve the person promoted or person transferred. In pursuance of such order, the person promoted or transferred go to join the new post after he is relieved and after he is released by the competent authority of the department. Such order, if there is any, has not been shown by the respondents. Therefore, it is difficult to accept the submission of the learned counsel for the respondents that the petitioner failed to join his new post to which he was promoted on his own risk and his non joining amounts to disobedience to his superior authorities of the department. Even assuming that the petitioner by disobeying the order or the orders of the authorities, did not go to join his new post to which he was promoted, the authorities have the power to enforce the order if they really intended to move the petitioner to the post he was promoted. Even assuming that the petitioner by disobeying the order or the orders of the authorities, did not go to join his new post to which he was promoted, the authorities have the power to enforce the order if they really intended to move the petitioner to the post he was promoted. Having kept quiet only gives room to a reasonable presumption that the petitioner had continued in his old posting with their advice or verbal instruction or tacit support or permission keeping in view the interest of the school administration. As such, I am of the view that there is no reason to blame the petitioner for not having moved from his present post to the new post to which he has been promoted and posted. Therefore, the submission of the petitioner that he continued to serve at his present posting as advised or instructed by the higher authorities of the department in the interest of the institution appears to be more plausible hence acceptable under the facts and circumstances. In such circumstances, the respondents cannot turn around and deny the petitioner’s claim, as that would amount to victimisation and discrimination as other similarly situated persons in the same Department have been treated differently. It may not be out of place to mention here that it has become common knowledge that the schools in the hills are hardly functioning for either lack of number of teachers or due to non-posting of teachers or non-joining or lack of attendance of such teachers posted there. There are also reasons for that. One of the common problems is that in the hill villages, normally there are no quarters available for teachers. Therefore, teachers would have to manage by staying in rental houses. To get houses for rent is also not an easy thing in the hills. These are circumstances which cannot be ignored. In such circumstances, the petitioner’s continuance in that posting rather deserves appreciation than attributing disobedience or vested interest etc. on him. 11. Therefore, teachers would have to manage by staying in rental houses. To get houses for rent is also not an easy thing in the hills. These are circumstances which cannot be ignored. In such circumstances, the petitioner’s continuance in that posting rather deserves appreciation than attributing disobedience or vested interest etc. on him. 11. Regarding the submission of the learned counsel of the respondents that the petitioner’s claim for equal treatment with the people he had mentioned in his petition cannot be granted because that would lead to perpetuating illegality in the system which cannot be allowed by law, I am of the view that such submission or argument is not applicable in this case as no illegality has been shown by the respondents in the orders issued by the department in the case of Shri K. Tiken Singh who was made to continue in the post where he was on deputation, that is, Controller of Examination of the Board of Secondary Education, Manipur, though he was given promotion to the post of Principal of Higher Secondary School. 12. In view of the above stated facts and circumstances, reasons given, I am of the view that the petitioner’s claim is justified, therefore, there is no reason why he should not be given appropriate relief or reliefs which this Court can give under Article 226 of the Constitution for meeting the ends of justice. Accordingly, this Court directs that the respondents should issue necessary and appropriate order as has been done in the case of other similarly situated persons as stated above so that the petitioner’s service as lecturer of Higher Secondary School to which he has been promoted is protected. The respondents should issue the order within 3 (three) months from the date of receipt of a copy of this order. With this, the writ petition is disposed of.