Roop Krishan Dhar vs State and Others

R.C. Gandhi, J.—This Letters Patent Appeal has arisen out of an order dated 4.9.1999 passed in SWP No. 2299/98, whereby the learned

Single Judge has dismissed the writ petition.

A few facts necessary for disposal of the appeal are that appellant was appointed as Attendant for a period of 89 days or till selection is made

by District Level Committee, in the Animal Husbandry Department, by the Deputy Commissioner Kupwara vide his order dated 6.7.1989. This

arrangement was extended for another spell of 89 days or till the selection is made, whichever is earlier, by the Chief Animal Husbandry Officer,

Kupwara vide order dated 16.10.1989.

The appellant migrated to Jammu in the month of April, 1990 and he continued to draw his salary on the basis of an affidavit deposing therein

that he is a temporary employee of the department. Respondents in the year 1998 came to know that appellant is not a temporary employee but

was appointed for a specific period on adhoc basis. This was conveyed by the Director, Animal Husbandry Kashmir, Srinagar to the Financial

Commissioner/Secretary to Govt. Agriculture Production, J and K Govt. Jammu vide communication No. 672(F.C.). Appellant challenged this

communication by means of writ petition, which has been dismissed.

The appellant has challenged the order, under appeal, on the ground that he is a permanent employee and the respondents have stopped his

leave salary. He is also contributing towards G.P.F. which is an evidence of his regular employment. His further ground of challenge is that

respondents have discriminated him as similarly situated persons like Krishan Ji Bhan, have been extended the benefit of leave salary whereas the

appellant has been denied the said benefit.

Heard learned counsel for the parties, perused the memo of appeal, judgment under appeal and other evidence on record. Admitted case of the

appellant is that he was engaged on adhoc basis for a period of 89 days or till the selection is made, whichever is earlier. It is also not denied that

the appellant has filed wrong affidavit, wherein he has deposed that he is a temporary employee, which factually is incorrect as the appellant was

appointed on adhoc basis by the Deputy Commissioner, Kupwara. The appointment of the petitioner for 89 days was not extended beyond April,

1990, and thus has come to an end by the efflux of time in view of the law Laid down by the Supreme Court in Director Institute of Management

Development, UP. Vs Smt. Pushpa Srivastava, holding that:

Where the appointment is purely on adhoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding

such post can have no right to continue in the post. This is so even if the person is continued from time to time on 'adhoc' basis for more than a

year. He cannot claim regularisation in service on basis that he was appointed on adhoc basis for more than a year.

The argument of the learned counsel that appellant being subscriber towards G.P.F is holding the post temporarily, is without any substance.

G.P.F. Rules are applicable to employees borne on temporary/permanent establishment of the cadre of the service. The appellant being adhoc

employee and not holding the post on temporary/permanent basis. his subscription towards G.P.F. is erroneous and not protected under law.

The next plea of the learned counsel for the appellant is that the appellant has been discriminated visavis similarly circumstances Krishan Ji Bhan

who is being paid leave salary by the respondents. Learned counsel for the appellant could not make out that respondents action in granting leave

salary to Krishan Ji Bhan is valid in law. Unless. it is made out it cannot be enforced to seek parity or discrimination. An illegal order cannot be

made a precedent for the courts to grant relief to the similarly circumstanced persons. Article 14 of the Constitution is a positive concept and

cannot be made applicable to protect illegal orders by granting similar relief by the courts to other similarly situated persons, who are not legally

entitled thereto. Dealing with such a proposition the Supreme Court in AIR 1995, SC, 705. in Chandigarh Administration and others v. Jagjit Singh

and others has held:

Generally speaking, the mere fact that the respondentauthority has passed a particular order in the case of another person similarly situated can

never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal

and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in

favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal

or unwarranted order cannot be made the basis of issuing a writ compelling the respondentauthority to repeat the illegality or to pass another

unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the

respondentauthority has passed one illegal/ unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality

over again and again. The illegal/ unwarranted action must be corrected if it can be done according to lawindeed, wherever it is possible, the court

should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see

how it can be made a basis, for its repetition. By refusing to direct the respondentauthority to repeat the illegality, the court is not condoning the

earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would

be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law.

This view has been reiterated by the Supreme Court in AIR 1997, SC, 2268 in Arikaravula Sanyasi Raju v. Branch Manager, S.B.I.

Visakhapatnam and others wherein it has been held that:

Merely because, on a wrong advice, another employee was given pension after removal from service, the same cannot be made a ground under

Article 14 to perpetuate the same mistake So. 14 does not apply and no discrimination arises.

For the aforesaid reasons, we do not find any ground to interfere with the order under appeal, resultantly. the appeal fails and is accordingly

dismissed.