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2020 DIGILAW 746 (JHR)

Surendra Kumar Singh v. State of Jharkhand

2020-07-10

SANJAY KUMAR DWIVEDI

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ORDER : Sanjay Kumar Dwivedi, J. 1. Heard Dr. Ashok Kumar Singh, the learned counsel appearing for the petitioner and Mr. Mohan Kumar Dubey, AC to AG appearing on behalf of the respondent-State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioner has preferred this writ petition for quashing the order dated 19.06.2018 whereby the petitioner has been directed to be superannuated with effect from 22.12.2019. The other prayers are also there. 4. Dr. Singh, the learned counsel appearing for the petitioner submits that the petitioner was appointed on contractual basis pursuant to decision of the State of Jharkhand (Home Department) dated 07.06.2008 to constitute battalions of Special Auxiliary Police (SAP) on the post of Subedar for a period of five years with provision for its further extension. Dr. Singh, the learned counsel submits that after completion of five years further two years extension was provided to the petitioner which is extended from August, 2015 to 31.05.2017. He submits that the scheme of SAP-I was extended subsequently from 01.06.2017 to 31.05.2022. He submits that the maximum age of officers in SAP including Subedar was fixed at 55-62 years. He further submits that a similarly situated Subedar in SAP namely Subedar Major Awadh Kumar Singh who had attained the age of 60 years and 6 months on 28.10.2016 has been ordered to be retained in service beyond the age of 60 years and 6 months till he attained the age of 62 years. Mr. Singh submitted that this discrepancy has been taken by the Government of Jharkhand itself. In view of Annexures, 4, 7 and 9 there are documents issued under the signature of Government of Jharkhand, the clarification has been sought from the Director General of Police as to what basis there is discrepancy in retiring the persons who has been appointed on such post. He submits that in that view of the matter the petitioner may be treated to retire on the age of 62 years. 5. The case of the respondent State is that the petitioner was recruited in the Special Auxiliary Police (SAP-1 Battalion) on 08.08.2008. He submits that in that view of the matter the petitioner may be treated to retire on the age of 62 years. 5. The case of the respondent State is that the petitioner was recruited in the Special Auxiliary Police (SAP-1 Battalion) on 08.08.2008. Special Auxiliary Police has been raised vide letter dated 07.06.2008 of Government of Jharkhand mainly to assist the Jharkhand Police to curb left wing extremist menace. Nine junior commissioned officers and other ranks of special auxiliary police-1 battalion have given the supreme sacrifice fighting naxalites. The petitioner has served in special auxiliary police-1 battalion for approx. 11 years and 4 months on contractual basis. The initial contractual period is of two years and being extended as per the requirement of the organization. Paragraph no. 3 of the letter no. 15/AP-106/2006 (Section 6463/Ranchi Dated 2.12.2016 of Joint Secretary, Government of Jharkhand orders that "Special Auxiliary Police Personnel (ex-servicemen on contract) will continue to serve from the date of recruitment for 5 years only and their contractual period shall not be extended further". In the same context the letter dated 20.05.2015 wherein it is referred that meeting of the unified command was held under the chairmanship of Honourable the Chief Minister and the following decision was taken, "contracts of the existing personnel need not be renewed. New and younger personnel shall be inducted into the special auxiliary police battalions to give a fighting edge to the auxiliary force". The retirement/superannuation is not relevant for contractual employees, as the petitioner is, in such cases at the end of the service the contract gets terminated. In the paragraph no. 5 of the resolution dated 18.03.2016 it is noted that the recruitment age limit only of Commandant/Deputy Commandant from 45-55 years, has been extended to 58-62 years, because of the reason as mentioned in paragraph no. 3 of the said resolution, which is quoted below: "Report has been received that in the Indian Army, Lieutenant Colonel and Colonel superannuate at the age of 54 years and subsequently given reemployment for another (3-4) years. Hence, getting an officer below the age of 55 years is not possible." 6. 3 of the said resolution, which is quoted below: "Report has been received that in the Indian Army, Lieutenant Colonel and Colonel superannuate at the age of 54 years and subsequently given reemployment for another (3-4) years. Hence, getting an officer below the age of 55 years is not possible." 6. Having heard the learned counsel for the parties, the Court has perused the scheme whereby it transpires that it is the scheme with regard to especial circumstances and in that view of the matter the age limit has been prescribed therein and the petitioner was appointed on the contractual basis and his tenure was extended in terms of the appointment letter. A decision under the Chairmanship of the Chief Minister has been taken that "contracts of the existing personnel need not be renewed in view of letter dated 20.05.2015. The argument of Mr. Singh, the learned counsel with regard to Article 14 of the Constitution of India is also not acceptable to the Court as Article 14 is need to be considered in the positive manner and not in negative manner and on the ground of contract the persons who have been asked to retire at the age of 62 years the same relief cannot be extended to the petitioner. It is well-settled that persons cannot invoke Article 14 to claim benefit on the ground of parity if he is not entitled for such benefits. Article 14 embodies the concept of positive equality alone, and not negative equality. A reference in this regard may be made in case of "P. Singaravelan & Others v. District Collector, Tiruppur And DT & Others" reported in (2020) 3 SCC 133 . Para nos. 22 and 23 of the said judgment is quoted hereinbelow: "The only question to be settled, therefore, is whether the appellants are entitled to claim parity with the drivers who have so far been granted benefits vide the orders of the High Court and this Court, as mentioned supra in para-4. In this respect, we find that the High Court in the impugned judgment was correct in concluding that the appellants cannot claim such relief on the strength of Article 14 of the Constitution of India, when once it has been found that they are not lawfully entitled to the same. In this respect, we find that the High Court in the impugned judgment was correct in concluding that the appellants cannot claim such relief on the strength of Article 14 of the Constitution of India, when once it has been found that they are not lawfully entitled to the same. It is well-settled by now that a person cannot invoke Article 14 to claim a benefit extended to someone similarly placed if he is not lawfully entitled for such benefit in the first place. Article 14 embodies the concept of positive equality alone, and not negative equality, that is to say, it cannot be relied upon to perpetuate an illegality or irregularity. In fact, this Court has opined that this principle extends to orders passed by judicial fora as well. Thus, the jurisdiction of a higher court cannot be invoked on the basis of a wrong order passed by a lower forum. In this respect, it would be fruitful to refer to the following passage from the decision of this Court in Basawaraj v. LAO:(SCC p. 85, para-8). "8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which 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 the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similar wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. This proposition was also recently affirmed by a three-Judge Bench of this Court in 'State of Odisha v. Anup Kumar Senapati.'" 7. The documents which Mr. Singh the learned counsel is relying by which certain letters were wrote by the Government to the Director General of Police about the discrepancy in the retirement of such persons are the internal documents and it is for the Government to take a decision as the Director General is also the part of the Government. The Court finds that on the contractual appointment no right is there, they are governed in terms of the appointment letter. The contractual employee has no right to have his/her contract renewed in absence of any statutory or other right in his favour. 8. Accordingly, no relief can be extended to the petitioner in this writ petition. The writ petition [W.P.(S) No. 6207 of 2019] stands dismissed. 9. However, it is open to the petitioner to file a fresh representation in terms of the documents of the Government which are brought on record before the competent authority to take a decision in accordance with the rules, regulations and the policy of the Government. 10. I.A. if any also stands disposed of.