Himachal Pradesh High Court
Hari Singh vs Director General Of Sahastra Seema Bal & ... on 10 December, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 956/2017
.
Decided on: 10.12.2019
Hari Singh ..... Petitioner
Versus
Director General of Sahastra Seema Bal & anr. ...Respondents
Coram r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1
For the petitioner: Mr. T. S. Chauhan, Advocate.
For the respondents: Mr. Shashi Shirshoo, Central Government
Standing Counsel.
Tarlok Singh Chauhan, Judge (oral)
This petition has been filed with the following substantive prayers:
a) that a writ of certiorari may kindly be issued and order contained in Annexure P4 may kindly be quashed and set aside.
b) that the condition imposed by the respondent to undergo the requisite prepromotional course for granting ACP may 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes( ::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 2 be set aside as the same is illegal, arbitrary and discriminatory.
c) that the respondents may be directed to grant the pay .
scale of Rs.3200854900 w.e.f. 9.8.1999 after completion of 12 years of qualifying service and scale of Rs.5500175 9000 from 6.7.2007 revised pay scale of Rs.940034800, grade pay of Rs. 4200/ w.e.f. 6.7.2007 after completion of 24 years of qualifying service till 1.1.2006 and thereafter pay scale of Rs.930034800 + G.P. of Rs. 4600/ w.e.f.
6.7.2013 after completion of 30 years of service along with interest @ 9% per annum till the pay is made by the respondents in pursuance to the Modified Assured Carrier Progression Scheme adopted and implemented by the respondents.
2 The petitioner was appointed as Constable (General Duty) in Sahastra Seema Bal on 6.7.1983. He completed 12 years of service on 6.7.1995, but at that time Assured Carrier Progression Scheme (for short, "scheme") was not in vogue. The scheme was introduced w.e.f. 9.8.1999 on the recommendation of 5th Central Pay Commission (CPC), but the petitioner was not considered for grant of 1st financial upgradation under the scheme as he was not fulfilling the eligibility criteria prescribed for promotion i.e. he had not undergone senior cadre course(SCC), which was a mandatory requirement. However, on completion of SCC on 22.7.2002, he was granted 1 st financial upgradation ::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 3 under the scheme w.e.f. 23.7.2002 in the pay scale of Rs.3200 854900. He completed 24 years of service on 6.7.2007, but was .
not considered for grant of 2nd financial upgradation under the scheme as he had not undergone senior under officer cadre course (SUOCC) and was also not medically fit, which was prerequisite for promotion as well as for getting benefit under the scheme. He was promoted to the rank of HC (General Duty) on 26.11.2006.
3 to The only ground on which the petitioner has filed this petition is that one Balwant Singh Rawat, who was similarly placed like the petitioner, had not qualified the promotional test and was granted the benefit under the scheme, however this contention is baseless as the respondents have categorically stated in their reply that Balwant Singh Rawat was granted financial benefit under the scheme as he remained medically fit upto his retirement. It shall be fruitful here to reproduce para 10 13 (c) of the reply, which reads as under: "That the contents of this para of the writ petition are wrong, hence denied inview of the submissions made herein above. As regard to grant of financial up gradation to Ex.HC/GD Balwant Singh Rawat in this connection it is submitted that MHA in consultation with DoP&T has accorded approval to grant ACP benefits with effect from the ::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 4 due date (24 years of regular service), provided that the concerned officials must have successfully undergone the prepromotional senior under officer cadre course (SUCCO) .
course in the first attempt or the official have retired before being detailed for such course. Accordingly ExHC/GD Balwant Singh Rawat was granted financial benefit under ACP scheme as he remained medically fit upto this retirement. Moreover, no serving person has received benefits who have not undergone promotional course or medically unfit like HC/GD Hari Singh (petitioner). Therefore, HC/GD Hari Singh is not entitled to get 2 nd financial upgradation under ACP scheme."
4 In addition to aforesaid, even learned counsel for the petitioner was not able to spell out any right under which he is entitled to the reliefs claimed and in fact what the petitioner is urging is a plea of negative parity which cannot be claimed and enforced in a Court of law as it is only a legal right that can be enforced in a Court of law.
5 In this context, it would be apposite to refer to the recent judgment of the Hon'ble Supreme Court in Civil Appeal No. 7295 of 2019, titled as State of Odisha and another vs. Anup Kumar Senapati and another, decided on 16.09.2019, wherein it was held as under:
::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 5"30. It was lastly submitted that concerning other persons, the orders have been passed by the Tribunal, which was affirmed by the High Court and grantsinaid has been .
released under the Order of 1994 as such on the ground of parity this Court should not interfere. No doubt, there had been a divergence of opinion on the aforesaid issue. Be that as it may. In our opinion, there is no concept of negative equality under Article 14 of the Constitution. In case the person has a right, he has to be treated equally, but where right is not available a person cannot claim rights to be treated equally as the right does not exist, negative equality when the right does not exist, cannot be claimed. In Basawaraj and another v. Special Land Acquisition Officer, (2013) 14 SCC 81, it was held thus:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same ::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 6 irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on .
the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745, Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164, K.K. Bhalla v. State of M.P, (2006) 3 SCC 581 and Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455.)"
In Chaman Lal v. State of Punjab and others, (2014) 15 SCC 715, it was observed as under:
"16. More so, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit has been conferred upon someone inadvertently or otherwise, it may not be a ground to grant similar relief to others. This Court in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81 considered this issue and held as under:
(SCC p. 85, para 8) "8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases.
The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or ::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 7 court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial .
forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745, Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164, K.K. Bhalla v.
State of M.P, (2006) 3 SCC 581 and Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455.)""
In Fuljit Kaur v. State of Punjab and others, (2010) 11 SCC 455, it was observed thus:
"11. The respondent cannot claim parity with D.S. Laungia v. State of Punjab, AIR 1993 P & H 54, in view of the settled legal proposition that Article 14 of the Constitution of India does not envisage negative equality. Article 14 is not meant to perpetuate illegality or fraud. Article 14 of the Constitution has a positive concept. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing ::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 8 a wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim the benefits on the basis of the wrong decision. Even otherwise .
Article 14 cannot be stretched too far otherwise it would make function of the administration impossible. (Vide Coromandel Fertilizers Ltd. v. Union of India, 1984 Supp SCC 457, Panchi Devi v. State of Rajasthan, (2009) 2 SCC 589 and Shanti Sports Club v. Union of India, (2009) 15 SCC 705)"
In Doiwala Sehkari Shram Samvida Samiti Ltd. v. State of Uttaranchal and others, (2007) 11 SCC 641, this Court in the context of negative equality observed thus:
"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."::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 9
In Bondu Ramaswamy and others v. Bangalore Development Authority and others, (2010) 7 SCC 129, this Court observed thus:
.
"146. If the rules/scheme/policy provides for deletion of certain categories of land and if the petitioner falls under those categories, he will be entitled to relief. But if under the rules or scheme or policy for deletion, his land is not eligible for deletion, his land cannot be deleted merely on the ground that some other land similarly situated had been deleted (even though that land also did not fall under any category eligible to be deleted), as that would amount to enforcing negative equality. But where large extents of land of others are indiscriminately and arbitrarily deleted, then the court may grant relief, if, on account of such deletions, the development scheme for that area has become inexecutable or has resulted in abandonment of the scheme."
In Kulwinder Pal Singh and another v. State of Punjab and others, (2016) 6 SCC 532, this Court while relying upon State of U.P. v. Rajkumar Sharma, (2006) 3 SCC 330, observed as under:
"16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. InState of U.P. v. Rajkumar Sharma, (2006) 3 SCC 330 it was held as under (SCC p. 337, para 15) ::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 10 "15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not .
envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P, (1996) 7 SCC 426; Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35; State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321; Faridabad CT Scan Centrev. DG, Health Services, (1997) 7 SCC 752; Jalandhar Improvement Trust v. Sampuran Singh, (1999) 3 SCC 494; State of Punjab v. Rajeev Sarwal, (1999) 9 SCC 240; Yogesh Kumar v. Govt. (NCT of Delhi), (2003) 3 SCC 548; Union of India v. International Trading Co., (2003) 5 SCC 437 and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority, (2006) 2 SCC 604.)"
Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality."
In Rajasthan State Industrial Development & Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and others, (2013) 5 SCC 427, this Court held as under:
"19. Even if the lands of other similarly situated persons have been released, the Society must satisfy the Court that it is similarly situated in all respects, and has an independent right to get the land released. Article 14 of the Constitution does not envisage negative equality, and it cannot be used to perpetuate any illegality. The doctrine of discrimination based upon the existence of an enforceable ::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 11 right, and Article 14 would hence apply, only when invidious discrimination is meted out to equals, similarly circumstanced without any rational basis, or to relationship .
that would warrant such discrimination. [Vide Sneh Prabha v. State of U.P., (1996) 7 SCC 426, Yogesh Kumar v. Govt. (NCT of Delhi), (2003) 3 SCC 548, State of W.B. v. Debasish Mukherjee, (2011) 14 SCC 187 and Priya Gupta v. State of Chhattisgarh, (2012) 7 SCC 433.]"
In Arup Das and others v. State of Assam and others, (2012) 5 SCC 559, this Court observed as under:
"19. In a recent decision rendered by this Court in State of U.P. v. Rajkumar Sharma, (2006) 3 SCC 330, this Court once again had to consider the question of filling up of vacancies over and above the number of vacancies advertised. Referring to the various decisions rendered on this issue, this Court held that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointments as a matter of right. It was reiterated that mere inclusion of candidates in the select list does not confer any right to be selected, even if some of the vacancies remained unfilled. This Court went on to observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake."::: Downloaded on - 17/12/2019 20:24:52 :::HCHP 12
In State of Orissa and another v. Mamata Mohanty, (2011) 3 SCC 436, it was observed:
"56. It is a settled legal proposition that Article 14 is not .
meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745, Yogesh Kumar v. Govt. of NCT of Delhi, (2003) 3 SCC 548, Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164, K.K. Bhalla v. State of M.P., (2006) 3 SCC 581, Krishan Bhatt v. State of J & K, (2008) 9 SCC 24, State of Bihar v.
Upendra Narayan Singh, (2009) 5 SCC 65 and Union of India v. Kartick Chandra Mondal, (2010) 2 SCC 422)"
6 Having said so, I find no merit in this petition and the same is accordingly dismissed, so also the pending application(s), if any. No order as to costs.
10.12.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
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