Rajasthan High Court - Jaipur
Mohd Saleem vs State Home Department Ors on 24 February, 2023
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
[2023/RJJP/002839]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 20864/2013
Mohd. Saleem Son Of Mohd. Ali, aged about 36 years, R/o C-36,
Rana Colony, Nahri Ka Naka, Shastri Nagar, Jaipur
----Petitioner
Versus
1. State Of Rajasthan Through Pr.Secretary, Home
Department, Government Of Rajasthan, Secretariat,
Jaipur
2. Director General Of Police, Police Headquarters,
Rajasthan, Jaipur
3. Superintendent Of Police, Headquarters, Jaipur
----Respondents
For Petitioner(s) : Mr. Shobhit Tiwari
Mr. Gaurav Sharma
For Respondent(s) : Mr. P.S. Naruka for
Mr. Rupin Kala, G.C.
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Reserved on : 15/02/2023
Pronounced on : 24/02/2023
Reportable
ORDER
(1) Instant petition has been filed by the petitioner with the
following prayers :-
"(i) the impugned order dated 03.6.2010 be quashed and set aside and the petitioner be reinstated in service on the post of Constable with all consequential benefits;
(ii) any other order or direction as may be deemed fit and proper in the facts and circumstances of the case, may also be passed in favour of humble petitioner.
(iii) cost of this writ petition may also be awarded in favour of humble petitioner."
(2) Learned counsel for the petitioner submits that pursuant to the advertisement issued by the respondents in the year 1996, the petitioner participated in the process of selection for appointment on the post of Constable.
(Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (2 of 15) [CW-20864/2013] (3) Counsel submits that at the time of submission of application form, no criminal case was pending against the petitioner. Counsel submits that after selection of the petitioner, when application form for police verification was given to the petitioner, he disclosed one fact regarding pendency of a criminal case against him. Counsel submits that appointment was not given to any of the selected candidates against whom criminal cases were pending in pursuance of Circular dated 29.4.1995. Counsel submits that subsequently the aforesaid Circular was withdrawn by the respondents vide order dated 27.7.2001 and one time relaxation was given to such selected candidates against whom the criminal cases were pending. Counsel submits that after passing of the order dated 27.7.2001 a list of 114 candidates was prepared for giving appointment. Counsel submits that prior to the issuance of order dated 27.7.2001, the petitioner approached this court by way of filing S.B. Civil Writ Petition No. 3364/1998 and the same was allowed vide order dated 10.12.1998 and direction was issued to the respondents to appoint the petitioner on the post of Constable. Counsel submits that against the aforesaid order, the respondents submitted D.B. Civil Special Appeal (Writ) No. 515/1999 and the same was dismissed vide order dated 9.7.2001. Counsel submits that the petitioner was offered appointment vide order dated 22.11.2002 and all of a sudden, without any notice to the petitioner, appointment of the petitioner was cancelled by the respondents vide impugned order dated 3.6.2010. Counsel submits that the petitioner has already been acquitted in the criminal case vide judgment dated 26.5.2000. Counsel submits that once (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (3 of 15) [CW-20864/2013] appointment was given to the petitioner, he has got a vested right and the said right cannot be snatched by the respondents in violation of the principles of natural justice. Counsel submits that the appointment was not offered to the petitioner in pursuance of the directions issued by this court, rather the same was offered to the petitioner on the basis of a policy decision taken by the respondents by which relaxation was given to the candidates against whom a criminal case was pending. Counsel submits that services / appointment of the petitioner has been cancelled on the basis of judgment dated 10.12.2009 passed by the Hon'ble Apex Court in Civil Appeal No. 782/2004 filed by the State respondents against the orders passed by the Single and Division Benches of this court. Counsel submits that the judgment passed by the Hon'ble Apex Court is per incuriam and the services of petitioner cannot be discontinued on the basis of the judgment of the Hon'ble Apex Court. Counsel submits that when appointment has been given to similarly situated 113 candidates, against whom also a criminal case was pending and relaxation was granted to them, then similar treatment should have been given to the petitioner also. Placing reliance on the following judgments, counsel submits that under these circumstances, interference of this court is warranted :-
(i) Pramod Singh Kirar v. State of Madhya Pradesh & Ors [Civil Appeal Nos. 8934-8935 of 2022 decided on 2.12.2022]
(ii) Avtar Singh v. Union of India & Ors ( 2016 ) 8 SCC 471
(iii) Union of India & Ors v. Methu Meda (2022) 1 SCC 1
(iv) State of Madhya Pradesh v. Bunty (2019) 6 Scale 458
(v) State of Madhya Pradesh & Ors v. Abhijit Singh Pawar (2018) 18 SCC 733
(vi) Pawan Kumar v. Union of India & Anr [Civil Appeal No(s). 3574 of 2022 decided on 2.5.2022] (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (4 of 15) [CW-20864/2013] In alternative, the counsel raised the argument that a sympathetic view may be taken in favour of the petitioner, as he was allowed to work on the post of Constable w.e.f. 22.11.2002 to 3.6.2010 and all of a sudden his appointment was cancelled on 3.6.2010 and now the petitioner has become over in age and he has no other opportunity to participate in any other selection process, so he may be allowed to continue on the post of Constable.
(4) Per contra, counsel for the respondents opposed the arguments raised by the counsel for petitioner and submits that initially, appointment was not offered to the petitioner on account of the Circular dated 29.4.1995. Counsel submits that the petitioner approached this court by way of filing S.B. Civil Writ Petition No. 3364/1998 and the same was allowed on 10.12.1998, against which the State respondents preferred D.B. Civil Special Appeal (Writ) No. 515/1999 and the same was dismissed by the Division Bench of this court vide order dated 9.7.2001. Counsel submits that against the aforesaid orders, the State submitted Civil Appeal No. 782/2004 before the Hon'ble Apex Court, but during pendency of the above appeal submitted by the State respondents, appointment was given to the petitioner vide order dated 22.11.2002. Counsel submits that when the Civil Appeal filed by the State respondents was allowed by the Hon'ble Apex Court vide order dated 10.12.2009, appointment of the petitioner was cancelled in pursuance of the directions of the Hon'ble Apex Court, vide impugned order dated 3.6.2010. Counsel submits that the appointment of petitioner has been cancelled in pursuance of the judgment of the Hon'ble Apex Court, hence there is no illegality in the impugned order dated 3.6.2010. Placing reliance (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (5 of 15) [CW-20864/2013] on the judgment of Laxman Choudhary v. State & Ors [S.B. Civil Writ Petition No. 2757/2019 decided on 31.3.2022] counsel submits that under these circumstances, interference of this court is not warranted.
(5) Heard and considered the submissions made at the Bar and perused the material available on record. (6) This fact is not in dispute that the petitioner and similarly situated 114 persons participated in the process of selection for appointment on the post of Constable. This fact is also not in dispute that appointment was not offered to all those candidates due to the Circular dated 29.4.1995, which clearly stopped the Deportment to offer appointment to the selected candidates against whom criminal cases were pending. It appears that except the petitioner, rest of 113 candidates have not approached this court by way of filing any writ petition. It appears that only the petitioner approached this court by way of filing S.B. Civil Writ Petition No. 3364/1998 and the same was allowed vide order dated 10.12.1998. The State respondents challenged the aforesaid order dated 10.12.1998 before the Division Bench of this court by way of filing D.B. Civil Special Appeal (Writ) No. 515/1999 and the same was dismissed by the Division Bench vide order dated 9.7.2001. It appears that against the aforesaid order, the State respondents submitted Civil Appeal No. 782/2004 before the Hon'ble Apex Court of India and that appeal remained pending before the Hon'ble Apex Court till 10.12.2009. During pendency of the said appeal before the Hon'ble Apex Court, appointment was given to the petitioner by the respondents vide order dated (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (6 of 15) [CW-20864/2013] 22.11.2002, though reference of the pending appeal was not there in the appointment order of the petitioner.
(7) It is worthy to note here that a list of 114 candidates was prepared by the respondents in which status of the criminal cases was mentioned. Name of petitioner was there at serial no. 79 and an endorsement was made in front of the name of petitioner that State has filed appeal against the orders passed by the High Court. Looking to the above aspect of the matter, appointment was given to the petitioner on 22.11.2002. The petitioner remained continued in service till disposal of the Civil Appeal by the Hon'ble Apex Court. The Hon'ble Apex Court has quashed and set aside the orders passed by the Single Bench and Division Bench of this court vide order dated 10.12.2009 by observing thus :-
"Heard learned counsel for the parties. This appeal has been filed against the impugned judgment and order dated 9.7.2001 of the Division Bench of the High Court of Rajasthan, Jaipur Bench whereby the appeal filed by the appellants herein has been dismissed and the order passed by the learned Single Judge has been upheld.
It appears that the respondent applied for the post of Constable but his selection was canceled by order dated 4.3.1998 on the ground that his candidature was contrary to the Memorandum dated 29.4.1995 issued by the Office of The Director General of Police Rajasthan. The aforesaid Memorandum states that if a candidate is involved in a crime of violence which includes Section 323 IPC then he is not eligible for police service. However, it has also been stated therein that if after the trial the candidate is acquitted honourably then the candidate may be considered for recruitment into Police by taking the approval of the next higher officer to the appointing authority.
In this case we have seen the judgment of the Trial Court in Crl. Case No. 607/1999 and find that the respondent was not acquitted honourably. It appears that there was some compromise and certain witnesses turned hostile. The injured witness Tahir Ali was held to be not reliable. This, in our opinion, means that the respondent-accused was given benefit of doubt and not that he was acquitted honourably.
Learned counsel for the respondent submitted that a Full Bench of the Rajasthan High Court in the case of Dharam Pal Vs. State of Rajasthan RLW 2000(2) 815 has (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (7 of 15) [CW-20864/2013] quashed the said Memorandum dated 29.14.1995. We respectfully do not agree with the aforesaied Full Bench decision of the High Court and hold that the said Memorandum dated 29.4.1995 is perfectly valid as we are also of the opinion that a person who is involved in a criminal offence certainly cannot be taken into police service.
For the aforesaid reasons, we set aside the impugned judgment and order of the Division Bench as also of the learned Single Judge and allow this appeal. No order as to the costs."
(8) Immediately after passing of the aforesaid judgment by the Hon'ble Apex Court, the respondents have passed the order impugned by which appointment of the petitioner has been cancelled on 3.6.2010. Hence, this fact is absolutely clear that appointment of the petitioner was cancelled on the basis of the judgment passed by the Hon'ble Apex Court.
(9) It is the settled proposition of law that judicial discipline and judicial decorum should be followed by this court when services of petitioner has been terminated on the basis of order passed by the Hon'ble Apex Court in Civil Appeal No. 782/2004. (10) This court does not find any force in the argument of the counsel for the petitioner that the judgment passed by the Hon'ble Apex Court in Civil Appeal filed by the State against the petitioner is per incuriam and the same amounts to obiter dicta, hence the same is not binding and the respondents cannot be allowed to cancel the appointment order of the petitioner. It is settled proposition of law that judicial propriety demands that being highest court of the land, even the obiter dictum of the Hon'ble Supreme Court should be accepted as binding. Hon'ble Apex Court in the case of State of Kerala v. Vasudevan Nair 1997 Cr.L.J. 97, has held as under:-
"...Judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (8 of 15) [CW-20864/2013] mean that every statement contained in a judgment of that Court would be attracted by Article 141. Statements on matters other than law have no binding force...."
(11) In Oriental Insurance Co. Ltd. v. Meena Variyal (2007) 5 SCC 428, Hon'ble Apex Court has observed that an obiter dictum of the Supreme Court is binding on the High Courts. Same view has been expressed by the Hon'ble Apex Court in the case of Peerless General Finance and Investment Co. Ltd. v. Commissioner of Income Tax (2019) SCC Online 851 that "...a pronouncement by the Supreme Court, even it cannot be strictly called the ratio decidendi of the judgment, would certainly be binding on the High court...". The Supreme Court in the case of Suganthi Suresh Kumar v. Jagdeeshan (2002) 2 SCC 420, has held as follows:-
"It is impermissible for the High Court to overrule the decision of the apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India, AIR 1988 SC 1353 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court."
(12) In Sundeep Kumar Bafna v. State of Maharashtra (2014) 16 SCC 623, (paragraph 20), while discussing the doctrine of precedent, the Supreme Court gave a "salutary clarion caution to all courts, including the High Courts, to be extremely careful and circumspect in concluding a judgment of the Supreme Court to be per incuriam". Similarly, in South Central Railway Employees Cooperative Credit Society Employees Union v. B. Yashodabai, (2015) 2 SCC 727, the Supreme Court set aside a judgment of the Andhra Pradesh High Court with the following observations: (Downloaded on 28/02/2023 at 11:54:56 PM)
[2023/RJJP/002839] (9 of 15) [CW-20864/2013] "14. We are of the view that it was not open to the High Court to hold that the judgment delivered by this Court in South Central Railway Employees Coop. Credit Society Employees' Union v. Registrar of Coop. Societies [South Central Railway Employees Coop. Credit Society Employees' Union v. Registrar of Coop. Societies, (1998) 2 SCC 580 : 1998 SCC (L&S) 703] was per incuriam.
15. If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this country because in that case there would be no finality to any order passed by this Court. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside. The High Court had considered several provisions which, in its opinion, had not been considered or argued before this Court when CA No. 4343 of 1988 was decided [South Central Railway Employees Coop. Credit Society Employees' Union v. Registrar of Coop. Societies, (1998) 2 SCC 580]. If the litigants or lawyers are permitted to argue that something what was correct, but was not argued earlier before the higher court and on that ground if the courts below are permitted to take a different view in a matter, possibly the entire law in relation to the precedents and ratio decidendi will have to be rewritten and, in our opinion, that cannot be done. Moreover, by not following the law laid down by this Court, the High Court or the subordinate courts would also be violating the provisions of Article 141 of the Constitution of India."
(13) Instant matter is a second round of litigation with regard to appointment of the petitioner on the post of Constable. In earlier round of litigation, the writ petition no.3364/1998 filed by the petitioner, the Single Bench of this court allowed the said petition with directions to the respondents to appoint the petitioner vide order dated 10.12.1998. Against the said order of Single Bench, the respondents submitted D.B. Special Appeal (Writ) No.515/2019 before the Division Bench and the said Special Appeal was dismissed on 9.7.2001. Against the order of Division Bench, the respondents submitted Civil Appeal No.782/2004 before the Hon'ble Apex Court and during pendency of the said Appeal before Hon'ble Supreme Court, the respondents offered appointment to the petitioner on 22.11.2002. Finally the appeal was allowed and the orders passed by the Single Bench and (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (10 of 15) [CW-20864/2013] Division Bench of this court were quashed and set aside on 10.12.2009 and accordingly the appointment order of the petitioner was cancelled on 3.6.2010. Once the Hon'ble Supreme Court has put a seal to the first round of litigation about not giving appointment to the petitioner and accordingly the order of the petitioner has been cancelled, this second round of the petitioner challenging his order of cancellation of appointment is not permissible. Judicial propriety and decorum demands that the law laid by the higher court of the land must be given effect to. Dealing with the issue "whether the last word spoken by the higher court of the land must be given effect to?", this court had an occasion to decide the issue in the case of Ramnarayan & Anr v. Mahaveer & Ors [S.B. Crl. Misc. (Petition) No.99/2023 decided on 17.1.2023], in paras 18 to 23 as under:-
"(18) Once the Hon'ble Apex Court has put a seal to the first round of litigation against the petitioners then the second round of litigation by the same petitioners is not permissible. Thus the doctrine of finality has to be applied in a strict legal sense. Judicial propriety and decorum demands that the law laid down by the highest court of the land must be given effect to. (19) In M. Nagabhushana v. State of Karnataka (2011) 3 SCC 408, the Hon'ble Apex Court has held that the doctrine of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. The main object of the doctrine is to promote a fair administration of justice and to prevent abuse of process of the court on the issues which have become final between the parties. The doctrine is based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause.
(20) Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretense of law inasmuch as there will be no end to litigation. The doctrine of res judicata has been evolved to prevent such anarchy. (21) In a country governed by the rule of law, the finality of a judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (11 of 15) [CW-20864/2013] is not permissible for the parties to reopen the concluded judgments of the court. It would also nullify the doctrine of stare decisis, a well-established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the court and particularly of the Apex Court of a country cannot and should not be unsettled lightly. (22) Hon'ble Apex Court in the case of Union of India & Ors v. Major S.P. Sharma & Ors (2014) 6 SCC 351, has held in para 83 to 88 as under :-
83. Precedent keeps the law predictable and the law declared by this Court, being the law of the land, is binding on all courts/tribunals and authorities in India in view of Article 141 of the Constitution. The judicial system "only works if someone is allowed to have the last word" and the last word so spoken is accepted and religiously followed. The doctrine of stare decisis promotes a certainty and consistency in judicial decisions and this helps in the development of the law. Besides providing guidelines for individuals as to what would be the consequences if he chooses the legal action, the doctrine promotes confidence of the people in the system of the judicial administration.
Even otherwise it is an imperative necessity to avoid uncertainty and confusion. Judicial propriety and decorum demand that the law laid down by the highest Court of the land must be given effect to.
84. In Rupa Ashok Hurra v. Ashok Hurra and Anr AIR 2002 SC 1771, this Court dealt with the issue and held that reconsideration of a judgment of this Court which has attained finality is not normally permissible. A decision upon a question of law rendered by this Court was conclusive and would bind the court in subsequent cases. The court cannot sit in appeal against its own judgment.
85. In Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay AIR 1974 SC 2009, this Court held as under:
"22. ...At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of the rule of law. Certainty in law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (12 of 15) [CW-20864/2013] the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law."
Thus, in view of the above, it can be held that doctrine of finality has to be applied in a strict legal sense.
86. While dealing with the issue this Court in Ambika Prasad Mishra v. State of U.P. AIR 1980 SC 1762, held as under:
"6. It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority 'merely because it was badly argued, inadequately considered and fallaciously reasoned'."
87. The view has been expressed by a three-Judge Bench of this Court in these very proceedings while dismissing the special leave petitions of Subhash Juneja and Harish Lal Singh vide order dated 23.4.2003 [Subhash Juneja v. Union of India (2006) 14 SCC 384]. This Court applied the doctrine of finality of judgment and res-judicata and refused to reopen these very proceedings.
88. Mrs. Kiran Suri, learned Counsel appearing for the Respondent, put heavy reliance on a decision of this Court in the case of Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613, for the proposition that question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court. Further by an erroneous decision if the court resumes jurisdiction which it does not possess under the Statute, the question cannot operate as res judicata between the same parties whether the cause of action in the subsequent litigation is same or otherwise. In our opinion, the aforesaid decision is of no help to the Respondent for the simple reason that the facts and the law involved in the instant case and the earlier round of litigation the same. In para 5 of the aforesaid judgment, this Court has laid down principle, which reads as under:
5. But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby.
A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the "matter in issue"
may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (13 of 15) [CW-20864/2013] decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law.
(23) Thus, it is well settled law that it is not permissible for the parties to re-open the concluded judgments as the same may not only tantamount to an abuse of the process of the law and court but would have far-reaching adverse effect on the administration of justice."
The hallmark of a judicial pronouncement is its stability and finality. It is well established principle of law "one cannot be allowed to do anything indirectly what one cannot do directly". The attempt in this petition is clearly to seek a substantive modification of the judgment of Hon'ble Apex Court dated 10.12.2009, as on the basis of which appointment of the petitioner has been cancelled on 3.6.2010. Such an attempt is not permissible under any law.
(14) Now the next question before this court is when 113 similarly situated persons have been given appointment by the respondents against whom also criminal cases were lodged, (Downloaded on 28/02/2023 at 11:54:56 PM) [2023/RJJP/002839] (14 of 15) [CW-20864/2013] whether petitioner is also entitled to continue on the post on which he was given appointment? It is well settled that the writ court in exercise of its jurisdiction under Article 226 of the Constitution of India, would not issue a writ on the basis of negative parity or to act contrary to law or to perpetuate the illegality. Merely because the similarly situated persons were offered appointment and allowed to continue on the post, the petitioner does not become per se entitled to continue on the ground of parity and no writ of mandamus can be issued to maintain negative parity. A plea of Article 14 of the Constitution of India cannot be invoked to claim negative equality, such as the one sought to be claimed herein. A wrong act cannot be cited as precedence to claim parity nor it creates a right in favour of similarly situated persons like the petitioner.
(15) This court finds no force in the alternative argument of the counsel for the petitioner that a sympathetic view may be taken in favour of the petitioner to continue on the post of Constable. Sympathy alone cannot be a ground to grant relief to the petitioner contrary to the judgment of Hon'ble Apex Court against the petitioner. It is well established principle of law that sympathy which is not within the precincts of law, cannot be a basis to grant something which is otherwise impermissible. The relief sought by the petitioner cannot be granted to him by adopting a sympathetic view. The judgments relied by the counsel for the petitioner are not applicable in the facts and circumstances of this case.
(Downloaded on 28/02/2023 at 11:54:56 PM)
[2023/RJJP/002839] (15 of 15) [CW-20864/2013] (16) In view of the forgoing discussion, this court finds no merit in this petition and accordingly the same is dismissed. No costs.
Stay application and all applications, pending if any, also stand dismissed.
(ANOOP KUMAR DHAND), J.
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