N.L. Jangid vs Union of India and Others

Veerender Singh Siradhana, J.—The petitioner has instituted the instant writ proceedings, praying for the following relief(s):

(i) By an appropriate writ, order or direction the respondents may kindly be directed to grant advance increments, not adjustable in future increment, in favour of the petitioner w.e.f. the date other employees of the TRIFED have been granted such advance increments i.e. 1.4.98.

(ii) by an appropriate writ, order or direction the respondents may kindly be directed to pay arrears of advance increments w.e.f. 1.4.98.

(iii) by an appropriate writ, order or direction which this Hon''ble Court may deem just and proper in the facts of the case may kindly be passed in favour of the petitioner."

Shorn off unnecessary details, the indispensable material facts necessary for appreciation of the controversy needs to be first noticed. The petitioner has staked his claim on the ground that the junior persons, to the petitioner, have been accorded benefits of advance increments vide order dated 31st March, 1998. The petitioner, being senior, is also entitled for the same relief but he has been deprived without any cogent and convincing reasons sustainable in law.

Taking note of the rival submissions, on 13th March, 2014, on the prayer of the counsel for the respondents, permission was granted to the respondents, to place on record, the copies of the orders, by which the advance increments accorded to juniors to the petitioner, were withdrawn.

The respondents have placed on record an order dated 25th September, 2002, from where it is reflected that the benefit of two/three advance increments, with effect from 1.4.1998, not adjustable in future increments; granted to 52 employees of the respondent-Federation, have been withdrawn. The petitioner responding to the additional affidavit, filed his counter on 27th May, 2014, with the statement that the juniors to the petitioner were accorded illegal and undue benefits whereas the petitioner has been deprived of the same without any fault on his part. Thus, the claim of the petitioner is for grant of same benefits, which were granted to the junior persons though those benefits might have been withdrawn vide order dated 25th September, 2002.

I have heard the learned counsel for the parties and with their assistance perused the materials available on record.

From a glance of the prayer clause, it is evident that the petitioner instituted the present writ proceedings praying for an appropriate writ, order or direction to the respondents to grant advance increments, not adjustable in future increment; in favour of the petitioner w.e.f. the date other junior employees of the TRIFED have been accorded such benefit that is w.e.f. 1.4.98.

Indisputably, in view of the office order dated 25th September, 2002; the benefits accorded to 52 employees of the Federation (TRIFED), were subjected to scrutiny by the Committee constituted, and the report of the Committee was placed before the Managing Director on 16th August, 2002. The Managing Director, keeping in view, the report submitted by the Chairman of the Committee constituted, to enquire into the matter, concluded that the grant of benefit of two/three advance increments, was totally contrary to the Central Govt. FR/SR, and was also not covered by any Rules/Regulations/BOD resolution of the TRIFED. Therefore, the action in grant of benefit of two/three advance increments, vide order dated 31st March, 1998 w.e.f. 1st April, 1998, not adjustable in future increments; was treated as illegal and void ab initio. Consequently, the benefit of grant of advance increments was withdrawn, as is reflected from the office order dated 25th September, 2002.

From the counter affidavit, in response to the additional affidavit, filed on behalf of the petitioner, on 27th May, 2014, it is reflected that the petitioner is claiming ''equality in illegality'' for according to the learned counsel for the petitioner that in spite of the order dated 25th September, 2002; the junior persons to the petitioner were still receiving more monetary benefits than the petitioner. No factual foundation has been laid in the writ application to sustain the claim and statement made in face of order dated 25th September, 2002, withdrawing the benefits. I see no reason why the consequences shall not follow in accordance with law, in view of order dated 25th September, 2002. Be that as it may, the controversy on the issue, while staking claim for relief on the principle of ''equality in illegality'', is no more res integra in view of the several pronouncements by the Hon''ble Supreme Court in a catena of judgments.

In the case of Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain and Others, , the Hon''ble Supreme Court, held thus:

"The question then is whether the action of not delivering possession of the land to the respondents on par with other persons who had possession is ultra vires act and violates Article 14 of the Constitution? We had directed the appellants to file an affidavit explaining the actions taken regarding the allotment which came to be made to others. An affidavit has been filed in that behalf by Shri Pawan Arora, Deputy Commissioner, that allotments in respect of 47 persons were cancelled and possession was not given. He listed various cases pending in this Court and the High Court and executing court in respect of other cases. It is clear from the record that as and when any person had gone to the court to get the orders of the LAO enforced, the appellant-authority resisted such actions taking consistent stand and usually adverse orders have been subjected to decision in various proceedings. Therefore, no blame of inaction or favoritism to others can be laid at the door of the present set up of the appellant-authority. When the Minister was the Chairman and had made illegal allotments following which possession was delivered, no action to unsettle any such illegal allotment could have been taken then. That apart, they were awaiting the outcome of pending cases. It would thus be clear that the present set up of the bureaucrats has set new standards to suspend the claims and is trying to legalise the ultra vires actions of Minister and predecessor bureaucrats through the process of law so much so that illegal and ultra vires acts are not allowed to be legitimised nor are to be perpetuated by aid of Article 14. That apart, Article 14 has no application or justification to legitimise an illegal and illegitimate action. Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the same benefit. The rational relationship and legal back up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some persons derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead, nor court can countenance that benefit had from infraction of law must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously no." 10. Their Lordships in the case of Secretary, JDA (supra) further, observed thus:

"28. A host of other decisions in that context have laid the same principle. It is not necessary to burden the judgment any further. Suffice 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 legalised. 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." 11. In a recent pronouncement, in the case of Fuljit Kaur Vs. State of Punjab and Others, and connected matters, the Hon''ble Supreme Court, reiterating the earlier settled legal proposition that Article 14 of the Constitution of India does not envisage negative equality, observed thus:

"11. The respondent cannot claim parity with D.S. Laungia (supra) in view of the settled legal proposition that Article 14 of the Constitution of India does not envisages for 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 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. Vs. Union of India (UOI) and Others, ; Panchi Devi Vs. State of Rajasthan and Others, ; and Shanti Sports Club and Anr. v. Union of India and Ors." 12. In the case of I.C.A.R. and another Vs. T.K. Suryanarayan and others, ; the Hon''ble Supreme Court held in no uncertain terms that even if in some case, erroneous promotions have been made contrary to the Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, another employee cannot base his claim for promotion, contrary to the statutory service rules, in law courts. At this juncture, it will be relevant to consider the observations made by the Hon''ble Supreme Court under paragraph 8 of the judgment, which reads thus:

"8. We are, however, enable to accept the submissions made by the learned counsel appearing in both these SLPs. Even if in some cases, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim for promotion contrary to the statutory service rules in law courts. Incorrect promotion either given erroneously by the Department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules. In a court of law, employees cannot be permitted to contend that the Service Rules made effective on 1.10.1975 should not be adhered to because in some cases erroneous promotions had been given. The statutory rules must be applied strictly in terms of the interpretation of rules as indicated in the decision of a three-Judge Bench of this Court in Khetra Mohan case. When the said Service Rules were introduced w.e.f. 1.10.1975, one-time exercise was required to be made to decide the fitment of the employees in different grades. Except in case of fitment in Grade T-1-3 of Category 1 and consequential accelerated promotion to G Grade T-2-3 of Category 2, on the basis of qualification in no other case accelerated promotion on the basis of educational qualification is permissible. If relaxation of educational qualification is made effective on the date of enforcement of the said Service Rules it will be a case of review of initial fitment. In all other cases, promotion is to be given in accordance with the said Service Rules and not otherwise. The respondents in these appeals were not entitled to get initial fitment in Grade T-1-3. As a matter of fact, they got initial fitment in grade lower than Grade T-1-3 of Category 1. Therefore, they are not entitled to accelerated promotion on the basis of educational qualification consequent upon the initial fitment in Grade T-1-3 of Category 1. The impugned decisions of the Tribunal, therefore, cannot be sustained." 13. For the reasons and discussions hereinabove and in view of the order dated 25th September, 2002, whereby the respondents have withdrawn the benefits of advance increments to the persons who were allegedly juniors to the petitioner. The petitioner is not entitled to any relief.

The writ application is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.

Ordered accordingly.

However, in the facts and circumstances of the case, there shall be no order as to costs.