Madhya Pradesh High Court
Dharmendra Singh Jadon vs The State Of Madhya Pradesh on 2 March, 2020
Equivalent citations: AIRONLINE 2020 MP 161
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors)
WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors)
WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors)
WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P.
and Ors.)
Gwalior, Dated :02/03/2020
Shri Jitendra Sharma and Shri Anuraj Sharma, Advocates for
petitioners in all petitions.
Shri P.S. Raghuvanshi, Government Advocate for State in all
petitions.
Shri MPS Raghuvanshi, Advocate for respondents no.4, 6 and
7 in WP No.5656/2009, for respondents no.6, 7, 8 and 9 in WP No.2928/2009, for respondent no.6 in WP No.5678/2009 and for respondents no.6 and 7 in WP No.6600/2013.
By this common order WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors), WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors), WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) and WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) shall be disposed of.
2. For the sake of convenience, the facts of Writ Petition No.5656/2009 shall be taken into consideration.
3. This petition under Article 226 of the Constitution of India has been filed against the order dated 28/11/2008 passed by respondent no.2 in case No.Anudan/J.20/93-04/1186.
4. It is submitted by the counsel for the petitioner that earlier the Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02 2 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) petitioner was appointed on the post of Upper Division Teacher in Rastra Bhasa Prasar Jan Seva Awam Shiksha Samiti by order dated 1/7/1990. The said school was taken over by the State Government by order dated 13/11/2000, Annexure P/3. The list of Teachers/ employees working in the said school was prepared, however, the name of the petitioner did not find place in the said list, which is marked as Annexure P/4. From the inspection report of 1999-2000, it is clear that the petitioner was an employee working on the post of Upper Division Teacher, Annexure P/5. Since the petitioner was not absorbed by the State Government, therefore, he filed a Writ Petition No.139/2001, which was finally disposed of by order dated 29/6/2006 and the following directions were given:-
"4. Consequently, the resolution dated 19-2- 2000 and the termination order dated 19-2-2000 are hereby quashed. Respondents are directed to conduct an enquiry ignoring the order of termination, as to whether the petitioner fulfills the qualifications for absorption or not and if he is found suitable then a proper order be passed in regard to the petitioner but the petitioner would not be entitled to arrears of salary. If he is found suitable, he would be entitled to continuity of service and other benefits. Necessary orders be passed in this regard within a period of three months from the date of receipt of certified copy of this order. The enquiry shall be limited only with regard to petitioner's absorption."Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02
3 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.)
5. Being aggrieved by the order passed by the Single Judge in Writ Petition No.139/2001, the State preferred a Writ Appeal No.363/2008, Annexure P/9, which was dismissed by order dated 10/9/2008 and accordingly, the case of the petitioner for his absorption was considered by the Commissioner, Public Education and it was found that the absorption of the teachers has not been done in accordance with law, therefore, the entire list of absorbed teachers was set aside and a new screening committee was constituted by order dated 17/10/2008, Annexure P/10.
6. It is submitted that against the order dated 17/10/2008 passed by the Commissioner, Public Education, Bhopal, Annexure P/10, Writ Petition No.5193/2008 (s) was preferred by already absorbed private respondents, which was dismissed by order dated 7/5/2009. The order passed by the Writ Court was challenged by the private respondents by filing Writ Appeal No.260/2009, 261/2009 and 262/2009 and all the three writ appeals were decided by a common judgment dated 23/7/2009 and the order passed by the Writ Court in Writ Petition No.139/2001 was set aside as well as the order dated 17/10/2008 passed by the Commissioner, Public Education, Bhopal, Annexure P/10, was also set aside with the following observations:- Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02
4 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) "9. So far as allegation about eligibility of the present appellants is concerned, learned counsel for the State has invited attention of this Court to the rules namely the Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997 to show that the appellants -
writ petitioners do not fulfill the eligibility criteria. However, the rules referred to above do not help the respondents - State because the said rules are applicable only to the employees of Panchayats. In the present case, the appellants - writ petitioners are absorbed in the School Education Department of the State Government and the rules which are applicable to the Panchayats are not applicable to the School Education Department of the State Government. Hence, the said rules are not applicable in the present case.
10. The Apex Court in the case of Gajanan L. Pernekar vs. State of Goa and another, (1999) 8 SCC 378 has held that the order of absorption made in favour of the petitioner cannot be rescinded without giving opportunity to them to show cause against it and benefit of absorption cannot be taken away without affording any opportunity of hearing to the employee.
11. In the light of the aforesaid judgment and the fact that present appellants were already found fit for absorption and there was direction from this Court in W.P. no.139/01 for enquiry limited only to the extent of Ram Gopal Rawat, now under the garb of the said order, cases of the present appellants cannot be again placed before the screening committee. That will be against the mandate issued by this Court in Writ Petition No.139/01 since the said judgment has already attained finality between the parties including the present appellants and the respondents. Hence, the learned writ court has committed error in dismissing the writ petitions filed by the present appellants."
Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02 5 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.)
7. It is submitted that now by the impugned order dated 28/11/2008, Annexure P/1 the case of the petitioner for his absorption as UDT has been rejected on the ground that the petitioner has passed BA examination in third division and BEd examination in second division, but for appointment on the post of Shiksha Karmi Grade-II, the petitioner should have passed BA examination in second division, therefore, he does not hold the minimum qualification for his absorption on the post of Shiksha Karmi Grade-II. For absorption on the post of Shiksha Karmi Grade-III, the minimum requirement is that the candidate must have passed Higher Secondary School Examination (Class 12th). It is also mentioned that although the petitioner has passed the Higher Secondary School Examination in second division and also holds the minimum qualification for his appointment/absorption on the post of Shiksha Karmi Grade-III, but there are only two sanctioned post of Shiksha Karmi Grade-III in the school and they are already filled and under these circumstances, his absorption was rejected. It is submitted by the counsel for the petitioner that although the Division Bench of this Court while deciding Writ Appeal No.260/2009 had held that the private respondents cannot be adversely affected while considering the case Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02 6 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) of the petitioner for his absorption, but since the private respondents have also passed BA examination in third division, therefore, they are also not entitled to hold the post of UDT. It is further submitted that the order in Writ Appeal No.260/2009 was challenged by the State by filing Civil Appeal No.2329/2010, which too has been dismissed by the Supreme Court by order dated 25/2/2015. It is further submitted that it is clear from the order passed by the Writ Appellate Court that the rules on which the respondents had placed reliance were applicable only to the employees of Panchayats and, therefore, the petitioner is entitled for his absorption on the post of Upper Division Teacher.
8. Per contra, the counsel for the respondents have supported the impugned order dated 28/11/2009. It is submitted by the counsel for the respondents no.4, 6 and 7 that since the absorption of the respondents has not been disturbed and the Writ Appellate Court in Writ Appeal No.260/2009 had already observed that the appointment/absorption of the answering private respondents cannot be disturbed by the Commissioner, Public Education, Bhopal, therefore, the petitioner cannot challenge the appointment of the answering respondents to the post of UDT. Further no relief has been Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02 7 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) claimed against the private respondents. Further, by this petition, the petitioner is seeking his absorption on the post of UDT and even if the private respondents are not eligible to hold the post of UDT, still the principle of negative equality cannot be applied.
9. It is submitted by the counsel for the State that against the order dated 25/2/2015 passed by the Supreme Court in Civil Appeal No.2329/2010, a Review Petition is pending before the Supreme Court.
10. Heard learned counsel for the parties.
11. By the impugned order dated 28/11/2008 the Commissioner, Public Education, Bhopal has held that since the petitioner has passed his graduation in third division, therefore, he does not possess the minimum qualification for his appointment/absorption on the post of Shiksha Karmi Grade-II. The petitioner has not challenged this finding, but submitted that since the answering private respondents had also passed BA examination in third division, therefore, the petitioner is also entitled for the similar treatment.
12. The petitioner has not disputed that the minimum qualification for appointment/absorption on the post of Shiksha Karmi Grade-II is that a candidate must have passed graduation in second division. So Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02 8 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) far as the fact that the private respondents have been appointment/absorbed on the post of UDT in spite of the fact that they have also passed their graduation examination in third division is concerned, this Court is of the considered opinion that the appointment of the answering respondents was already upheld by the Writ Appellate Court in Writ Appeal No.260/2009. Since the appointment of the answering respondents has been affirmed by the Writ Appellate Court and their appointment has not been set aside, therefore, the petitioner cannot claim parity on the basis of negative equality. It is well established principle of law that the principle of negative equality is not applicable under Article 14 of the Constitution of India.
13. The Supreme Court in the case of Mangalam Organics Limited Vs. Union of India reported in (2017) 7 SCC 221 has held as under:-
"41. Examination of the matter in the aforesaid perspective would provide an answer to most of the arguments of the appellants. It would neither be a case of discrimination nor can it be said that the appellants have any right under Article 14 or Article 19(1)(g) of the Constitution which has been violated by non-issuance of notification under Section 11-C of the Act. Once the appellant accepts that in law it was liable to pay the duty, even if some of the units have been able to escape payment of duty for certain Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02 9 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) reasons, the appellant cannot say that no duty should be recovered from it by invoking Article 14 of the Constitution. It is well established that the equality clause enshrined in Article 14 of the Constitution is a positive concept and cannot be applied in the negative."
The Supreme Court in the case of Union of India and another Vs. International Trading Co. and another reported in (2003) 5 SCC 437 has held as under:-
"13. What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02
10 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) The Supreme Court in the case of Doiwala Sehkari Shram Samvida Samiti Ltd. Vs. State of Uttaranchal and others reported in (2007) 11 SCC 641 has held as under:-
"28. This Court in Union of India v. International Trading Co. has held that two wrongs do not make one right. The appellant cannot claim that since something wrong has been done in another case, directions should be given for doing another wrong. It would not be setting a wrong right but could be perpetuating another wrong and in such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 cannot be pressed into service in such cases. But the concept of equal treatment presupposes existence of similar legal foothold. It does not countenance repetition of a wrong action to bring wrongs on a par. The affected parties have to establish strength of their case on some other basis and not by claiming negative quality. In view of the law laid down by this Court in the above matter, the submission of the appellant has no force. In case, some of the persons have been granted permits wrongly, the appellant cannot claim the benefit of the wrong done by the Government."
The Supreme Court in the case of Vishal Properties (P) Ltd. Vs. State of U.P. and others reported in (2007) 11 SCC 172 has held as under:-
"13. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier. In Sushanta Tagore v. Union of India this Court rejected such a contention as sought to be advanced in the present case by Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02
11 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) observing: (SCC pp. 28-29, para 36) "36. Only because some advantages would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is trite law that there is no equality in illegality."
14. This view also finds support from the judgments of this Court in Sneh Prabha v. State of U.P., Secy., Jaipur Development Authority v. Daulat Mal Jain, State of Haryana v. Ram Kumar Mann and Faridabad CT Scan Centre v. D.G. Health Services.
15. In Financial Commr. (Revenue) v. Gulab Chand this Court rejected the contention that as other similarly situated persons had been retained in service, persons senior to the petitioner could not have been discharged during the period of probation observing that even if no action had been taken in similar situation against similarly situated persons then too it did not confer any legal right upon the petitioner.
16. In Jalandhar Improvement Trust v. Sampuran Singh and Union of India v. Rakesh Kumar this Court held that courts cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship.
17. Any action/order contrary to law does not confer any right upon any person for similar treatment. (See State of Punjab v. Dr. Rajeev Sarwal; Yogesh Kumar v. Govt. of NCT, Delhi; Union of India v. International Trading Co. and Anand Buttons Ltd. v. State of Haryana.)
18. Recently in State of Kerala v. K. Prasad it was inter alia held as follows: (SCC p. 147, para 14) Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02 12 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) "14. Dealing with such pleas at some length, this Court in Chandigarh Admn. v. Jagjit Singh has held that: (SCC p. 750, para 8) '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.' 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."
14. So far as the ground that the petitioner is entitled for his appointment/absorption on the post of Shiksha Karmi Grade-III is concerned, it has not been disputed by the petitioner that there is no vacancy of Shiksha Karmi Grade-III in the school. According to the impugned order, there are only to sanctioned posts of Shiksha Karmi Grade-III and both of them are filled and there is no vacancy. Thus, the petitioner cannot be absorbed as Shiksha Karmi Grade-III even in absence of any vacancy of Shiksha Karmi Grade-III. Under these Digitally signed by ARUN KUMAR MISHRA Date: 04/03/2020 17:05:02 13 THE HIGH COURT OF MADHYA PRADESH WP No.5656/09 (Ramgopal Rawat Vs. State of MP & Ors) WP No.2928/09 (Vijay Singh Rawat Vs. State of MP & Ors) WP No.5678/09 (Vishnu Dutta Sandilya Vs. State of MP & Ors) WP No.6600/2013 (Dharmendra Singh Jadon Vs. State of M.P. and Ors.) circumstances, this Court is of the considered opinion that no case is made out warranting interference.
15. The petition fails and is hereby dismissed.
(G.S. Ahluwalia)
Arun* Judge
Digitally signed by ARUN KUMAR
MISHRA
Date: 04/03/2020 17:05:02