Delhi High Court
Shri Amarnath And Ors. vs Lt. Governor Of Delhi And Ors. on 30 September, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. All these writ petitions arising out of the judgments and orders passed by the Central Administrative Tribunal involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.
2. The above-mentioned writ petitions have been filed at the instance of the Director of School Education and Government of NCT of Delhi questioning the legality/validity of the orders of the Tribunal whereby and whereunder the Original Applications filed by the respondents herein praying for grant of TGT (Drawing) scale of pay have been allowed. However, similar reliefs prayed for by the writ petitioner in CWP 5242/1998 was dismissed.
3. The basic fact in all these matters, however, is not disputed. The respondents were appointed as drawing teachers. They were earlier used to be appointed in three different grades, the senior grade being in the scale of pay of Rs. 170-380; junior grade in the scale of Rs. 160-300 and others in the scale of pay of Rs. 130-300.
4. However, later on, the said grades were revised to two grades being senior grade teacher having a scale of pay of Rs. 250-550 who are known as TGT (Drawing) and the junior grade at the scale of pay of Rs. 220-430 known as Assistant Teachers.
5. In the year 1972, the Central Board of Secondary Education upgraded the minimum qualification required to be possessed by the teachers teaching in Class XI in the Higher Secondary Schools for the subjects Drawing, Geometric Drawing, and Mechanical Drawing etc. wherefor the teachers having a Post Graduate Degree qualifications were only eligible for appointment. Pursuant to or in furtherance of the said recommendations of the Central Board of Secondary Education, the Ministry of Education and Social Welfare by a circular letter dated 31st May 1972 informed all the Directorates that those who did not possess the minimum qualification prescribed by the Board, would not be considered as qualified to each Class XI Higher Secondary Schools affiliated to the Central Board of Secondary Education. It was stated:
"As the revised minimum qualifications are of post-graduate level, it has been decided that teachers in the above mentioned subjects will also be entitled to the post graduate scale provided they possess the minimum post graduate qualifications prescribed by the Board and teach class XI.
You are advised to take immediate steps to frame/amend recruitment rules to provide for these minimum qualifications. The recruitment rules should, inter-alia, provide for method of appointment to teachers in post graduate scale in these subjects. In prescribing the method of appointment, the claims of existing teachers who possess these revised qualifications should be kept in view so that immediately on implementation of post graduate scales for teachers in these subjects as many of the existing teachers as possible who are qualified to teach Class XI according to revised qualifications are absorbed.
The number of teachers to be appointed in the post graduate scales in these subjects should conform to the approved post fixation formula.
The post graduate teachers in these subjects should be in position as soon as the school reopen after the summer vacations.
This issues with the concurrence of the Ministry of Finance vide their U.O. No. 2877/E.III-A/72 dated 23.5.1972."
6. In the afore-mentioned premises, the government of NCT framed Recruitment Rules for the Post Graduate Teachers (Drawing) for the first time on 27th February, 1973. It is not in dispute that prior thereto, no post of Post Graduate Teacher (Drawing) was in existence. In terms of the said rules, the requisite qualifications were laid down. By reason of the provisions of the said Rules, 75% of the posts were to be filled up by promotion and the rest 25% by direct recruitment. The feeder cadre for promotion for the said post was senior drawing teachers in the scale of Rs. 250-550 possessing qualifications prescribed for direct recruitment with regular service of five years in the grade.
7. One M.L. Sharma, a senior grade science teacher who was teaching class XI students filed a writ petition before this court which was marked as CWP 1479/1973 wherein the decision of the petitioners herein to change the qualification in respect of existing employees for being considered in the higher scale i.e. PGT grade was questioned. The contention of the writ petitioner therein was that a teacher who had already been teaching class XI and XII student could not be directed to be disqualified therefore by reason of the said Rules. In the year 1985, the Recruitment Rules for the post of PGT were amended making relaxation in educational qualification. The said writ petition was allowed by a judgment dated 20th February, 1985. It was directed:
"In my view, the petitioner cannot insist that he has a right to teach any particular class though he may have a justified grievance if his pay and allowances are affected because of retrospective amendment of the recruitment rules. The pay scale of teachers in the common cadre of Senior Grade Teachers cannot be different and if higher scale is given to teachers in the Senior Grade the petitioner who was in the Senior Grade would be entitled to the higher scale of pay.
In the result the petition is allowed to the extent indicated hereinabove. However, in the circumstances of the case there will be no order as to costs."
8. The learned Judge observed that the Government is entitled to alter the terms and conditions of service unilaterally and there is nothing wrong in giving preference to candidates having higher educational qualification for securing the best service for being eligible for promotion. In the said writ petition, no prayer was made that they are entitled to promotion to the post of PGT nor had any such relief been granted. What was granted, as noticed hereinbefore, was protection to the scale of pay advisable to the senior Grade Teacher. The petitioners herein obtained legal opinion from the Government counsel on the question as to whether an application for clarification of the said judgment could be filed or not, and it was opined:
"The learned Judge nowhere talks of the promotion. As a matter of fact, promotion was not the subject matter of the petition at all. As such, in my view, the judgment calls for no clarification from the Court/Judge. The Department may only ensure that Mr. M.L. Sharma is granted the same scale of pay in which the other teachers of the category are placed, irrespective of their qualification and recruitment rules."
9. Pursuant to or in furtherance of the said opinion, it was decided that no further action is required to be taken in the matter. The matter rested there.
10. Similar writ petitions filed before this Court being No. 1480/1973 and 1481/1973 were transferred to the Central Administrative Tribunal and were marked as TA No. 1/86 and 2/86. One Janak Singh and Thakar Dass Sapra were petitioners in the said application. Following M.L. Sharma (supra), similar reliefs were granted to the applicants therein.
11. By reason of a circular letter dated 27th July 1978 issued by the Government of India, Ministry of Education and Social Welfare, the pay scale of the junior drawing teachers was upgraded from Rs. 425-640 and Rs. 440-750. All teachers, thus, became entitled to the senior grade scale of pay.
12. The petitioners herein contend that although in view of the afore-mentioned steps, no further action was required to be taken but the Department was ill-advised to file Special Leave Petition against the judgment and order passed by the Tribunal in Janak Singh (supra) and Thakar Dass Sapra (supra). In the case of Janak Singh (supra), the Apex Court refused to interfere with the judgment of the Tribunal as the same was in consonance with the decision of this court in Thakar Dass Sapra (supra). However, in the case of Janak Singh (supra), a purported contention was raised that M.L. Sharma is factually distinguishable and on that plea of the petitioners, it was directed:
"It is open to the Delhi Administration, if it is so advised, to apply to the Tribunal by way of review petition explaining the points of distinction between the decision in M.L. Sharma's case and the decision under appeal. We do not, however, find it necessary to entertain this petition under Article 136 of the Constitution, the petition is disposed of accordingly."
13. However, it stands admitted that pursuant to or in furtherance of the said observation, no review petition was filed.
14. Despite the fact that only 141 posts were created under the Recruitment Rules and no post of PGT (Drawing) could be given to those who did not have the requisite qualification, the benefit of the scale of pay of PGT (Drawing) was given to all on a wrong interpretation of the orders passed by this court in M.L. Sharma (supra) as also the orders of the Central Administrative Tribunal following the same by an Office Order dated 26th April 1988 which is to the following effect:
"In pursuance of the verdict of the Delhi High Court in C.W.P. N. 1479/73 and the C.A.T. in regn. No. T-75/85 which were upheld by the Hon'ble Supreme Court in its judgment dated 22.9.87, and two other writ petitions filed, the courts had ordered that the affected Drawing Teachers be given promotions w.e.f. the dates their juniors have been promoted in 1973 and onwards. Accordingly, this office had issued O.M. No. 71, dated 31.5.88 and subsequent O.M. dated 25.10.88, circulating a list of senior most eligible Drawing Teachers. Subsequently, posts of PGT (Drg.) have been created vide Joint Secy. (Edn.) letter No. F.33-3(9)/SC/D-3/E-II/105506-105523, dated 25.11.88 and the following Drawing teachers are hereby promoted to the post of PGT (Drg/Engg.Drg.) in the pay scale & allowances as admissible from time to time against the posts so created w.e.f 1.10.73 or the date from which their juniors were promoted, whichever is later. Consequently upon their promotions, the following PGT (Drg.) are hereby posted in the Districts mentioned against their respective names."
15. We may notice that although earlier the afore-mentioned M.L. Sharma or Janak Singh or Thakar Dass Sapra had not been given any promotion, by reason thereof such promotion was granted.
16. Those, however, who were parties in the Original Application together with Thakar Dass Sapra and Janak Singh, filed contempt petitions, inter alia, on the ground that as they were also petitioners in the said Original Applications, ought to have been granted similar reliefs. By an order dated 17th April 1989, in the said contempt petition which was marked as CCP 186/1988, the learned Tribunal directed:
"We do not find any ground or justification for making any artificial discrimination based on the source of recruitment to the common cadre of senior grade teachers, as contended on behalf of the respondents. Our judgment dated 23.2.1987 based on the judgment of the Delhi High Court in M.L. Sharma's case is very clear and there is no ambiguity whatsoever. We accordingly direct the respondents to implement our judgment dated 23.2.1987 by giving the benefit of the higher scale to all the applicants in CWP No. 1312/73 (Regn. No. T. 75/85), who have not already been promoted to the higher grade. These directions shall be implemented within a period of three months from today, failing which, respondents 2 and 3 will appear in person on 7th August, 1989. Issue dusty."
17. In purported compliance of the said directions, an office order dated 1st January, 1990 was issued in terms whereof 26 teachers were promoted with retrospective effect from 1st October, 1973 or from the date from which their juniors were promoted. However, again by an order dated 13th January, 1992, the said order dated 1st January 1990 was modified in terms whereof the teachers named therein were promoted to the post of PGT in the pay scale of Rs. 550-900 (pre-revised) from 3rd January 1974 and Rs. 1640-2900 w.e.f. 1st January, 1986.
19. A spate of other petitions followed.
20. For the purpose of disposal of this petition, it may be necessary to refer to some of the petitions.
21. The Central Administrative Tribunal in the later petition i.e. OA No. 401/90 directed:
"This OA succeeds and is allowed. The respondents are directed to treat the applicants as being in the scale of PGT Drawing with effect from 7.3.1990. We are saying so because this OA was presented in this Tribunal on that day. The benefit of the judgment should be given to the applicants as per rules.
There shall be no order as to costs."
22. In the said petition, the Tribunal proceeded on the basis that this court directed grant of such PGT scale to the drawing teachers. In the case of one G.C. Pandey being OA No. 2671/1993, however, a prayer was made for quashing the afore-mentioned order dated 13th November, 1992 but later on the said prayer was not pressed and the Tribunal directed:
"In the circumstances, we are of the view that the interests of justice would be satisfied, if we issue a direction to the respondents to give to the applicant the same benefits as has been given to the petitioners in CWP No. 1312/73 by the office order dated 13.12.1974 (Annexure-I), but with the restriction that the promotion to the post of P.G.T. (Drawing/Engineering) will be notional as on 3.1.74. His pay should be notionally refixed on 3.1.74 and from 1.1.86. However, the benefit of such pay fixation will accrue to the applicant only from the date he made the Annexure-VII representation to the Government i.e. from 9.2.93. The applicant would, however, be entitled seniority and other consequential benefits that flows out from such notional promotion from 3.1.74. The respondents are directed to comply with these directions within a period of three months from the date of receipt of the copy of this order. With the above order and direction, the OA is disposed of. No cost."
23. However, a petition filed by one Shri Jot Ram who had earlier been promoted in regular in 1980 but prayed for promotion with retrospective effect from 1974 was dismissed holding:
"Assuming the decision initiated by us in O.A. No.401/90 should be made applicable in the case of the applicants i.e. fixation of P.G.T. scale from the date of which O.A. No. 401/90 was presented in this Tribunal. The applicant cannot derive any advantage there from. This is so because they have already been given P.G.T. scale in the year 1980. We, therefore, come to the conclusion that, in the circumstances, of these cases, the applicants are not entitled to any relief. The applications are dismissed but without any orders as to cost."
24. As regards OA No. 2279/1995 it was noticed:
"7. Thus, the three applicants in O.A. 2279/95 are before us in the second round of litigation, and have since received the benefit of Sr. Scale from 7.3.90 applying the principle/ratio arrived at by this Tribunal in O.A. 401/90 decided on 11.11.94. They are also aggrieved by orders dated 13.11.92 and particularly of 23.8.95. The applicant in O.A. 2599/96 have not received any benefit so far and is aggrieved by the office order No. 158 dated 13.11.92 wherein juniors to the applicant therein have been promoted denying the benefit to him. The applicant represented on 28.12.92. He, therefore, seeks relief of the benefit of the judgment in CWP No. 1317/73 (T-75/85). The applicant in O.A. 2180/97 got promotion in the Sr. Scale from 28.2.97 but claim the same from 3.1.74. She represented for the first time on 30.9.86. The two applicants in O.A. 2423/96 are aggrieved by the office order dated 13.11.92 and are not in receipt of any benefit so far. They had represented on 16.11.96 and 22.10.96 respectively."
25. Yet again, Shri Amar Singh and several other persons in CW 5242/1992 filed OA Nos. 2277/95, 2423/96, 2599/96 and 2160/97. The afore-mentioned OAs were disposed of directing:
"14. In the result, the O.A. No. 2423/96, 2599/96 and 2180/97 are partly allowed with the following directions:
(i) the respondents shall give benefit of the judgment of CWP No. 1312/73 to the applicants in these O.As as well and shall give them promotion on notional basis from the dates persons junior to them were promoted in 1973-74 i.e. 3.1.74 but payment of actual arrears shall be made only from the date one year prior to the filing of the individual OAs.
(ii) We make it clear that we have not passed any order in resect of three applicants in OA 2277/95 as following this Tribunal's intervention, they have already received an order dated 3.11.95. This was arising out of this Tribunals decision in OA. 401/90 decided on 11.11.94. The present O.A. has been filed to get the order of 11.11.94 modified. An O.A. challenging the orders of the Hon'ble Tribunal is not maintainable.
The O.As are disposed of as above. No costs."
26. Yet again, Sh. M.K. Popli and two others filed Original Applications which were marked as OA 218/93 wherein again a similar relief was granted and it was directed that they shall be promoted on notional basis from the date their juniors were promoted in the year 1973-74 on 3rd January 1974 but the actual payment of arrears shall be made one year prior to the date 14th January, 1993. Similar judgment was passed in OA 2577/1997 by a judgment and order dated 31st July 1998.
27. Similar order were passed in other cases on 12th November 1993, 3rd December 1999 and 19th March 1999.
28. When the aforementioned judgments were placed before one Shri T.C. Nak, Joint Director, Education, it was discovered, that the said judgments were being wrongly implemented which had a cascading effect in terms whereof all senior grade teachers were being promoted to PGT (Drawing) w.e.f. 3rd January 1974 notionally with arrears of pay one years from the filing of the OAs despite the fact that in the year 1988, there were only five posts of PGT (Drawing) were available but more than 40 teachers had been promoted. Such orders were being implemented by promoting persons in PGT posts against other subjects. It was also found that the drawing teachers were being promoted in large number in excess of their quota. It is averred:
"When the note from the very first judgment was prepared, startling facts emerged. They were that the Hon'ble High Court had nowhere stated that petitioners in those cases are to be promoted as PGT (Drawing). Because wrong implementation of the order, later on the Courts of their on while issuing same relief, as in the M.L. Sharma's case, also started issuing orders of promotion as PGT w.e.f. 3.1.1974 notionally and payment of arrears one year prior to the filing of the petition. The matter was considered in detail and it was decided that these orders should be challenged bringing complete facts before the Hon'ble High Court. The individual can get promotion as PGT (Drawing) only if there are vacancies and if they fulfill the requisite qualification. Even today if the petitioner don't stop, the position will be that all Drawing Teachers who were in senior grade from 1973 also are being give promotion even when there are no vacancies and most of them are not eligible also."
29. In the afore-mentioned situation, the following decision was said to have been taken:
"(xxv). That an exercise was done to find out as about those who have been given relief how many are in the service. During this exercise it was found that most of them have retired and a few more left. In their cases it can be considered as a Scale personal to them but it cannot be that every senior Drawing Teacher has to be given promotion in the PGT scale. It is submitted that after 1978 the junior grade was merged with the senior grade and now the designation is only Drawing Teacher. As per the Recruitment Rules the Drawing teachers are eligible for promotion as PGT (Drawing). Now even upgraded Drawing Teachers have also started claiming same benefits on the basis of earlier judgments.
(xxvi). That in the fresh cases the Department has already taken up a stand that all the individuals are no entitled to promotion but the Tribunal is passing orders following the earlier judgments."
30. Ms. Avnish Ahlawat, the learned counsel appearing on behalf of the petitioner would submit that in the instant case, a mistake had been committed in implementing the judgment inasmuch although the High Court in M.L. Sharma (supra) or the Tribunal in Janak Singh (supra) did not grant any relief of promotion to the drawing teachers in the PGT scale of pay to the petitioners therein and despite the fact that only there were limited number of posts, by way of implementation of the orders of the Tribunal, they had been promoted illegally. Such a mistake, contends the learned counsel, cannot be allowed to be perpetuated,inter alia, on the ground that they did not possess the requisite qualification therefore and even they are not otherwise entitled to it. According to the learned counsel, even in cases where the teachers were promoted in their turn, they are now also coming forward to claim, retrospective seniority. The learned counsel would submit that in a case of this nature, the learned Tribunal ought not to have granted relief which was not otherwise due to them. In support of the said contention, reliance has been placed on Supreme Court Employees Welfare Association v. Union of India and Ors., , and The General Manager, Telephones, Ahmedabad and Ors. v. V.G. Desai and Anr., . The learned counsel would contend that only because at one point of time, the Supreme Court has dismissed this Special Leave Petition, the same would not mean that the subsequent discovery of fact may not be brought to the notice of this court. Reliance in this connection has been placed on Hari Singh v. State of Haryana, JT 1993 (3) SC 73.
31. Ms. Ahlawat would submit that scope of a decision should not unnecessarily be enlarged. Reliance in this connection has been placed on Prakash Amichand Shah v. State of Gujarat and Ors., .
32. Mr. A.K. Wali and others learned counsel appearing on behalf of the respondents and petitioners in CWP 5242/98 would submit that their clients were senior to those who had been promoted.
33. It was submitted that when the juniors had been promoted w.e.f. 3rd January 1974, there was no reason as to why the petitioners of CW 5242/1998 would be promoted from 7th March, 1990. According to the learned counsel even Surjit Singh got promotion in the year 1972, thus there was no reason why a subsequent promotion would be granted to him only in the year 1990 whereas his juniors had been granted promotion w.e.f. 1974. Our attention had further been drawn to Memorandum dated 23rd December, 1981 which is to the following effect:
"DIRECtorATE OF EDUCATION (NEW DELHI) (Estt. IV Branch) No.F.33-2(24) Snty. Drg./79/E-IV/81 Date: 23/12/1981 MEMORANDUM Subject: Finalized seniority list of drawing teachers Grade-II (male and female) in the pay scale of Rs. 440/750 as a result of up-gradation of posts. (Administration cadre).
A tentative seniority list of post of Drawing Teachers Grade-II (male & female) in the pay scale of Rs. 440-750 as a result of up-gradation of post of Grade-III to II was circulated vide this Directorate of Memorandum of even number dated 30/06/1980, last date of receipt of objections there on was fixed on 31/07/1980, after considering all the objections, the seniority list has been finalized a copy of which is forwarded here with for information all concerned.
Sd.
Joint Director of Education (Admn.) sr.
No. Name of Teacher D.O.B Date of initial Appt.
Date of holding in the present Grade Remarks 337 Surjit Singh 25.7.1949 9.11.1972 27.7.1978 Promotion denied 338 Baldev Singh 3.3.1943 9.11.1972 27.7.1978 Promotion denied 339 Chranjit Singh 31.3.1944 2.1.1973 27.7.1978 Promotion granted Directorate of Education promoted Shri. Charanjit Singh Sntys. No. 339 ignoring Snty. No. 337 & 338. Injustice has been done."
34. It is not in dispute that in terms of Recruitment Rules framed for PGT only 141 posts were created by reason of a notification dated 27th February 1973. The said posts were classified as Class III non-gazetted non-ministerial. They were selection posts. For direct recruits, the following educational qualification were prescribed:
" Education and other qualification required for direct recruit:-
(a) Drawing: Any one of the following:-
(1) Master's Degree in Drawing & Painting with a recognized Diploma / Certificate of Minimum on year duration] (2) Graduate in Engineering form a recognized University or institute established by law or an equivalent degree.
(3) Graduate in architecture form a recognized University or institute established by law provided he had offered Geometrical & Mechanical Drawing as one of the subjects in Higher Sec. or equivalent course.
(4) Graduate from a recognized University with Drawing/Fine Art, and possessing one of the following Drawing Teachers Diploma/Certificate:-
... ... ... ... ...
(5) Graduate from a recognized University possessing one of the following Drawing Teachers Diploma/Certificate:-
... ... ... ... ...
(b) Geometrical and Mechanical Drawing: - Any one of the following:-
(1) Master's Degree in Drawing & Painting with a recognized Diploma / Certificate of minimum one year duration provided the person has studied Geom. & Mech. Drawing in his course.
(2) Graduate in Engineering (Preferably Mechanical) from a recognized University or institute established by law or an equivalent degree.
(3) Graduate in architecture from a recognized University or institute established by law provided he had offered Geometrical and Mechanical Drawing as one of the subjects in Higher Sec. or equivalent course.
(4) Graduate from recognized University with Drawing / Fine Arts, and possessing one of the following Drawing Teachers Diploma/Certificate provided he has studied Geom. & Mech. Drawing in graduation and / or teachers Diploma / Certificate:-
... ... ... ... ...
(5) Graduate form a recognized University one of the following possessing Drawing Teachers Diploma / Certificate provided he has studied Geom. & Mech. Drg. in the Graduation and / or Drawing teacher diploma / Certificate:-
... ... ... ... ..."
35. Other qualifications for holding the said posts had also been prescribed therein.
36. Paras 8 and 11 of the clarification issued read as under:
"8. Whether age and educational qualifications prescribed for direct recruits will apply in the case of promotion:
: Qualification to the extent mentioned in column No. 1 : Age-No.
11.In case of recruitment by promotion/deputation/transfer grades from which promotion/deputation/transfer to be made.
: Promotion : Sr. Drawing Teacher in the scale of Rs. 250-550 possessing qualifications prescribed for direct recruits with regular service of 5 years in the grade."
37. The power of relaxation has been conferred upon the Administrator by reason of the said rules which is as follows:
"4. Where the Administrator is of the opinion that it is necessary or expedient to do so,he may, by order for reasons to be recorded in writing relax any of the provisions of these rules with respect of any person/class or category of persons/posts."
38. By notification dated 2nd February 1985, the Schedule of the said Recruitment Rules was amended in terms whereof, inter alia, the following were substituted in place of Columns 1 and 7:
"In the said Schedule against Sl. No. 1 (Post Graduate Teacher (Drawing & Painting and Engineering Drawing) for the existing entries under Column 1 (name of the post), (Educational & other qualifications required for direct recruits), the following shall respectively be substituted. Namely:-
Column 1. Post Graduate Teacher:
(1) Painting (2) Commercial Art (3) Graphic (4) Sculpture (5) Engineering Drawing Column 7. 1(a) Painting (Class XI & XII) Any one of the followings:-
(I)(a) bachelor in Fine Art, or School Certificate Exam. with minimum 5 arouse (Full Time) diploma in Fine Art/Painting/Drawing & Painting from a recognized institute / University.
(ii) Graduate with Drawing& Painting as one of the subjects with minimum 4 years (full time) Diploma from a recognized institute/University.
(iii) Master's Degree in Fine Art/Drawing & Painting with a minimum of 2 years (Full time) diploma from recognized institute / University.
(b) Painting (Class IX & X)
(i) Higher Secondary/intermediate/Senior School Certificate Exam. with minimum 4 year (Full time) Diploma in Painting/Fine Art form a recognized institute/University; or B.A. With Drawing & Painting/Art/Fine Art with minimum 2 years (full time) diploma from a recognized institute; or M.A. in Drawing and Painting/Fine Art from a recognized University; or B.A. (Hons) in Art & Art Education, Jamia Millia Islamia, New Delhi."
39. The learned appearing on behalf of the respondents could not dispute that in M.K. Sharma (supra), this court did not direct grant of any promotion. Such a direction had also not been granted by the Tribunal in Janak Singh (supra) or Thakar Dass Sapra (supra). The petitioners had also obtained a legal opinion in relation thereto. Despite the same in terms of Office Order dated 26th April 1988, order of promotion had been issued purported to be in compliance of the order of this court in CW 1479/1973 and the orders of the Tribunal in the case of Thakar Dass Sapra (supra) and Janak Singh (supra). The material portion of the said order reads thus:
"In pursuance of the verdict of the Delhi High Court in C.W.P. No. 1479/73 and the C.A.t., in regn. No. T-75/85 which were upheld by the Hon'ble Supreme Court in its judgment dated 22.8.87, and two other writ petitions filed, the courts had ordered that the affected Drawing Teachers be given promotions w.e.f. the dates their juniors have been promoted in 1973 and onwards. Accordingly, this office had issued O.O. No. 71, dated 31.5.88 ad subsequent O.M. dated 25.10.88, circulating a list of senior most eligible Drawing Teachers. Subsequently, posts of PGT (Drg.) have been created vide Joint Secy. (Edn.) letter No. F.33-3 (9) / SC/D-3/E-II/105506 - 105523, dated 25.11.88 and the following Drawing Teachers are hereby promoted to the post of PGT (Drg/Engg.Drg.) in the pay scale & allowances as admissible from time to time against the posts so created w.e.f 1.10.73 or the date from which their juniors were promoted, whichever is later. Consequently upon their promotions, the following PGT (Drg.) are hereby posted in the Districts mentioned against their respective names."
40. Evidently, the said order was passed on a wholly wrong premise, as:
(i) there had been no judicial direction for grant of promotion.
(ii) At the relevant point of time,no post for grant of promotion was available.
(iii) No post could be crated for promotion to the selection grade in favor of persons who did not possess the requisite qualification.
41. In terms of the Recruitment Rules which are mandatory in nature, promotion was to be granted in terms of selection and seniority subject to the condition that the candidates therefore possessed the prescribed qualifications. The Recruitment Rules were framed by the Administrator in exercise of his powers conferred upon him under the proviso appended to Article 309 of the Constitution of India. In issuing the orders of promotion the said rules had not been given effect to. Such promotions were made in complete negation of the said Rules. The said promotions were, therefore, a nullity (See S. Renuka and Ors. v. State of A.P. and Anr., ).
42. In law, there is no dispute as regards the proposition that the persons similarly situated are to be treated alike. Article 14 of the Constitution of India, however, is a positive concept. Equality clause in Article 14 can be invoked in respect of an order which has bene legally passed. Equality cannot be claimed in relation to an illegality. Equality before law would mean 'when an order has been passed in favor of a person in accordance with law. Illegality, as is well known, cannot be perpetuated nor two wrongs make one order right.'
43. In a Full Bench judgment in Chander Pal v. NCT of Delhi and Ors. in CW 7568/2001 on 27th August 2002, this court observed:
"A wrong order does not create any right in favor of a third party.
In Shri Jagannath Temple Puri Management Committee and Anr. v. Chintamani Khuntia and Ors. (1987) 8 SCC 422 it was held.
"30. The Sevaks cannot also invoke Article 300-A in the facts of this case. The offering that are made to the deities are not the properties of the Sevaks. The Sevaks are given a share in these offerings as remuneration for guarding and collecting the offerings. They do not have to discharge these duties in regard to the monies deposited in the Hundis. They are not entitled to any share in these monies as of right. There cannot be any question of deprivation of any right to property of the Sevaks in the facts of this case. Merely because by mistake some monies were paid to "Dwaitatapatis" as compensation will not confer any right on the Sevaks to get any such compensation. No right can be founded on a mistake committed by the Temple Committee."
In State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. JT 2002 (5) SC 389, the law operating in the field is stated in the following terms:-
"30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favor of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favor of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh and Ors. v. NDMC and Ors. held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution, which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed:-
"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."
Again in Secretary Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors. this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:
"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalized. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."
"In State of Haryana and Ors. v. Ram Kumar Mann , this Court observed:
"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal or resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "NO". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right."
In any event, it cannot be disputed by the learned counsel for the parties that irrespective of the fact that whether the Employment Exchange was required to be notified or not in terms of the provisions of the Employment Exchange Act, obtaining of an employment relying on or on the basis of the forged document would itself be a misconduct.
Once it is found that the writ petitioners have indulged in such fraudulent activities rendering them unbecoming of the members of the Police Force, their services were bound/liable to be terminated and no illegality can be said to have been committed by the respondents. If in some other cases, the appellate authority had taken a different view without adverting to the real issue, the same would not itself confer any legal right upon the writ petitioners herein to pray for a writ of or in the nature of Mandamus directing the respondents to reinstate them in service following an illegal order."
44. The question as to what extent the authorities in the name of the implementation of a judgment of this court can grant much more than what was due to the writ petitioners is to be found out from this case. These cases are examples of callous attitude on the part of the authorities of the State. It is really a matter of great surprise that not only the higher authorities failed and/or neglected to take any action in the matter, but even the internal or external audit failed to detect the same. An illegal order was continued which had a cascading effect. The money of the tax-prayers had been allowed to be wrongly expended. In a case of this nature, a clear violation of doctrine of public trust had taken place. It is really a matter of great concern that the petitioners herein had not only been promoted to the PGT scale of pay although they were not qualified therefore but in the name of giving effect to the order passed by the Tribunal, even the posts which had to be filled up by other stream of teachers had been taken into consideration therefore. Those teachers who had been serving in other disciplines and were entitled to be considered for promotion to the said scale of pay, had been deprived there from despite the fact that they possessed the requisite qualifications.
45. Heart-burning no doubt would be caused to the respondents herein and the petitioners of CWP No. 5242/1998 but if the law of the land is to be given effect to, the judgments of the Tribunal impugned in these writ petitions must be set aside.
46. The rot in the system must be stopped here and now. In a case of this nature, howsoever unfortunate the decisions seems to be, the court cannot shut its eyes to the ground reality and proceed to grant reliefs to the Original Applicants which are not legally due to them. Such a relief cannot be granted only because others have obtained the same by reason of a serious mistake on the part of the officers of the respondent.
47. Ms. Ahlawat, in our opinion, rightly does not rule out the connivance of such officers with the teachers. If the orders have been passed by way of mistake, the State is entitled to bring to the notice of this court thereabout and pray that they be permitted to rectify the same. Mistake, bona fide committed, can be permitted to be rectified except in cases where such rectification of mistake would entail civil or evil consequences, principles of natural justice may have to be complied with. In these cases, the Original Applicants have not been granted promotion. Some of them, as noticed hereinbefore, had been granted promotion w.e.f. the date as were due to them.
48. Thus this court, in exercise of its jurisdiction under Article 226 of the Constitution of India and with a view to doing complete justice to the parties, is bound to set aside the order of the Tribunal.
49. It is evident that in the name of implementation of the order, a wider meaning had been given thereto in Prakash Amichand Shah v. State of Gujarat and Ors. (supra) as regards law of precedent to which the learned Tribunal fell prey without considering the fact of each matter beginning from its order dated 17th April 1989 in CCP No. CCP 186/1988.
50. In Supreme Court Employees Welfare Association v. Union of India and Ors. (supra), the Apex Court held that when a Special Leave Petition is dismissed simpliciter, the same would not amount to a declaration of law by the Supreme Court under Article 141 of the Constitution of India. The said principle has been reiterated in Hari Singh v. State of Haryana (supra) in the following terms:
"11. Article 136(1) of the Constitution confers overriding the extensive powers of granting special leave to appeal or rejection thereof in the discretion of this Court. Article 136 does not confer a right to appeal, it confers only a right to apply for special eave to appeal, which taking all facts and circumstances into consideration may be granted or rejected. Even in a case where special leave application is rejected, the Order of the High Court does not merge in the Order of this Court, as is the case while exercising the appellate power. Similarly when Special Leave Petition is entertained against any final or interlocutory order this Court does not convert itself in a Court of appeal. It was said in the case of Gian Chand v. Kunjbeharilal by Chandrachud, J. (as he was then):
"With regard to the first submission it may be pointed out that an application for special leave under Article 136 of the Constitution against a judgment or an order cannot be equated with the ordinary remedy of appeal, as of right, under any provisions of law. It is an extraordinary right conferred under the Constitution, within the discretion of this Court, and such an application for special leave does not come within the contemplation of appeal pending before the Court under Section 13A (a)."
51. In The General Manager, Telephones, Ahmedabad and Ors. v. V.G. Desai and Anr., , it was observed:
"15. Shri. Shetye has urged that the present case involves an individual employee and since substantial justice has been done by the Tribunal by directing payment of pension it is not a case which calls for interference by this Court under Article 136 of the Constitution. Reliance has been placed on the decision of this Court in Council of Scientific and Industrial Research and Anr. v. K.G.S. Bhatt and Anr., , wherein this Court has emphasized that in exercise of its jurisdiction under Article 136 of the Constitution this Court will not interfere with the orders of the Tribunal unless there is manifest injustice or substantial question of public importance. It is not doubt true that the power of this Court under Article 136 of the Constitution is to be exercised sparingly and the Court does not ordinarily interfere with the orders of the Tribunal on individual disputes. But since the possibility of the impugned judgment being used as a precedent in future, cannot be ignored we feel that the impugned judgment of the Tribunal dated April 27, 1992 cannot be allowed to stand and the matter calls for interference of this Court under Article 136 of the Constitution. We are not inclined to agree with the submission of Shri. Shetye that since substantial justice has been rendered this Court should not interfere with the impugned judgment of the Tribunal. In our opinion under the impugned judgment the Tribunal has extended pensionary benefits to the respondent which were not available to him in law."
52. The Apex Court in C.S.I.R. and Ors. v. Dr. Ajay Kumar Jain, observed:
"16. It would, therefore, appear that though the maximum period is three years, it could not be said that the contract could not be terminated before the expiry of that period. Rather the clause clearly provides that the contract could be terminated by giving notice of three months from either side. However, extension of contract for a further period of six months does not mean that the appellants have exercised their option to terminate the contract by giving three months' notice. Extension of contract for six months cannot be equated with the notice of termination of contract as provided in para 1 of the letter of appointment. The question then arises if the contract could be extended for a six month period only when the Scheme and the letter of appointment envisage extension of the contract on year-to-year basis. Both the Schemes serve twin purposes. Highly qualified Indian scientists and technologists returning from abroad get temporary placement until they are absorbed in suitable posts on more or less permanent basis. The nation also gains from the experience and knowledge of the scientists who have been working abroad. It is with pride that these scientists return to their motherland. They are to be shown due deference and consideration. Conditions are to be created that they do not again leave the country. The emoluments which are given to these scientists cannot be treated as a mere dole. They come back to the country of their origin with high hopes. Disappointment should not await them in the long run. The respondent was working as a Postdoctoral Fellow in Japan before he came to India to be placed as a Pool Officer. After the expiry of his tenure as a Pool Officer, he was selected and appointed as a Scientist Fellow under the Quick Hire Scheme by a duly constituted Selection Committee. He was appointed for one year. His placement could be extended on a year-to-year basis for a maximum period of three years. After the expiry of the first one-year period, he was given an extension of six months. His representation for further extension was turned down. We do not know if his case of extension was again placed before the Selection Committee and what reasons, if any, prevailed upon the appellants to extend the term of the respondent for six months only. In the counter-affidavit before CAT or in the grounds of appeal, the appellants have not given any reasons for such an extension of six months' period only. This action of the appellants on the face of it seems to be rather arbitrary and it appears to us that in this respect they have meted out shabby treatment to the respondent, a Scientist. In the circumstances, therefore, CAT is right in holding that the respondent would have continued for a full term of three years under the Quick Hire Scheme. But the CAT has gone a step further and has directed the appellants to regularize the services of the respondent which does not appear to be correct. No doubt, the Scientists' Pool Scheme and the Quick Hire Scheme provided a sort of cushion to the scientists returning from abroad and under the circumstances the period of their engagement under either of the Scheme has to be for a limited period. For regular appointment or absorption in CSIR or any of its bodies the scientists have to be governed by the relevant Service Rules as applicable.
17. Employment under the Quick Hire Scheme was on contract basis. The respondent was not governed by the CSIR Service Rules, 1994 for recruitment of scientific, technical and support staff as he would not be appointed under those Rules. An appointment under the Quick Hire Scheme cannot be equated with regular appointment as per the relevant Recruitment Rules of CSIR against a sanctioned post. To be eligible for regularisation, the respondent had to come within the relevant Rules. It is difficult to appreciate the directions issued by CAT in the circumstances of the case. A Pool Officer or a Scientist Fellow under the Quick Hire Scheme cannot continue to hold on to the job till superannuation. The respondent has referred to certain instances where scientists were appointed on permanent contractual posts by CSIR without following the selection procedure. If something wrong has been done in violation of the rules, we cannot use that as an example to perpetuate an illegality. In any case those cases are not before us and it is difficult for us to comment if there was violation of any rules regarding those scientists. The respondent, however, cannot take advantage of an illegality, if there is any. Appointment as a Scientist Fellow under the Quick Hire Scheme cannot be understood to mean regular appointment under the relevant Recruitment Rules applicable to CSIR or to bodies under its control. The term "appointment" has been only loosely used. It is mere placement as a Scientist Fellow and not appointment in the sense in which this term is used in service law. As noted above, a scheme has been framed for absorption in the Pool effective from 2-5-1997. If the respondent case is covered by that Scheme, he will certainly be entitled to be considered there under."
53. If something wrong has been done in violation of the rules, we may not use that as an example to perpetuate an illegality.
54. By reason of this order, we are not seeking to re-open the orders which have already been passed. It would only be for the respondents to take appropriate action in accordance with law if they desire so to do. It may be true that some persons have been given benefit for the year 1988 from 1974 and it is equally true that juniors to the Original Applicants have been granted such promotion, but as noticed hereinbefore, we are not called upon to answer the said question.
55. Promotion can be either to a post or scale of pay. It, would, therefore, be not correct to contend that the Original Applicants herein are not asking for promotion but merely for a higher scale of pay. However, the respondents may consider the desirability of finding out a solution by issuing a suitable policy decision in terms whereof the seniors may not lose their seniority although ultimately they may not be given the benefit of scale of pay. The writ petitioners, in our opinion, would be well-advised to take appropriate action against officers who are responsible for this cascading effect of wrong implementation of the judgment of this court. We may else observe that it will also be open to respondents to take appropriate action in the entire matter in accordance with law.
56. For the reasons afore-mentioned, these writ petitions except CW 5242/1998 are allowed and the judgments of the Tribunal are set aside. CW 5242/1998, however, is dismissed. In the facts and circumstances of these cases, there shall be no order as to costs.