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Santosh Vijay Srivastava v. State Of U.P. & Another - SPECIAL APPEAL DEFECTIVE No. 805 of 2004 [2005] RD-AH 7702 (16 December 2005)


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Court No. 34

Special Appeal No. (805) of 2004

Santosh Vijay Srivastava Vs. State of U.P. and another


Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

This Special Appeal has been filed against the judgment and order dated 28.5.2004 of a learned Judge of this Court by which the writ petition filed by the petitioner for being designated as Assistant Lecturer (Engineering) has been dismissed.

We have heard Sri Jayant Banerji, learned counsel for the appellant and the learned Standing Counsel appearing for the respondents.

The petitioner-appellant was working as a Workshop Instructor in the instrumentation Department of IERT, Allahabad. He was given the regular appointment w.e.f. 12.1.1983. The petitioner holds a Diploma in Electronics from U.P. Technical Board. A Government Order dated 31.12.1987 was issued changing the designation of Instructors possessing Diploma in Engineering as Assistant Engineer in the Polytechnic. The petitioner, therefore, claimed that he should be designated as Assistant Lecturer. In the opinion of the learned Judge the question that arose for determination was whether the petitioner was similarly situated and performing the same functions and duties of Assistant Lecturers. After analysis of the averments made in the affidavit, the learned Judge held that the academic qualification for appointment of the Workshop Instructor and Assistant Lecturer is different and the nature of work and responsibility is also not the same. The petitioner was selected against the post "Workshop Instrumentation and Control Department" and is discharging the duties in the Workshop since thereafter. He cannot, therefore, be treated as equal to the Assistant Lecturer. We do not find any infirmity in the decision of the learned Judge.

In addition thereto we would like to clarify that the post in question of Assistant Lecturer (Engineering) came into existence subsequent to the joining of the petitioner as Workshop Inspector. While creating the post of Assistant Lecturer (Engineering) Legislature/Competent Authority in its wisdom prescribed the mode of recruitment only by direct recruitment. Therefore, if any Government Order has subsequently been issued conferring such designation on any other person it is a nullity as no Executive instructions can override the statutory provision. More so, in Ram Ganesh Tripathi and others Vs. State of U.P. and others AIR 1997 SC 1446 the Supreme Court has categorically held that many Government Orders are issued only to oblige a particular class of employee or under their pressure. Therefore, it is the solemn duty of the Court, before giving due weight to such Government Orders, to see whether the said Government Orders are in consonance and conformity with the existing law and if they are found to be in contravention thereof, the Court should ignore them or declare them null and void. In such a fact situation, as the Competent Authority prescribed a particular mode for recruitment for the post of Assistant Lecturer (Engineering) only by direct recruitment it is not possible to give that designation by any other means.

We also find no force in the submissions made by Sri Jayant Banerji that similarly situated persons have been given the benefit of the Government Orders. Article 14 of the Constitution provides for a positive equality and not negative equality. Thus there is no need to pass an order to perpetuate an illegality or fraud if the authorities have earlier passed a wrong order.  

This view stands fortified by the judgments of the Hon'ble Apex Court eg., Snehprabha Vs. State of U.P. & ors., AIR 1996 SC 540; Secretary, Jaipur Development Authority, Jaipur Vs.  Daulat  Mal Jain & Ors., (1997) 1 SCC 35;  State of Haryana & Ors. Vs. Ram Kumar Mann, (1997) 3 SCC 321; and Faridabad C.T. Scan Centre Vs. D.G. Health Services & Ors., (1997) 7 SCC 752.

In Finance Commissioner (Revenue) Vs. Gulab Chandra & anr., 2001 AIR SCW 4774, the Hon'ble Apex Court rejected the contention that as other similarly situated persons had been retained in service, the seniors of the petitioner could not have been discharged during the period of probation observing that if no action has been taken in a similar situation against similarly situated persons, it did not confer any legal right upon the petitioner therein.

In Jalandhar Improvement Trust Vs. Sampuran Singh, AIR 1999 SC 1347 and Union of India & ors. Vs. Rakesh Kumar, 2001 AIR SCW 1458 the Hon'ble Supreme Court held that Courts cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship.

Any action/order contrary to law does not confer any right upon any person for similar treatment. (Vide State of Punjab & ors. Vs. Dr. Rajeev Sarwal, (1999) 9 SCC 240; Yogesh Kumar & ors vs. Government of NCT Delhi & ors., (2003) 3 SCC 548; and Union of India & anr. Vs. International Trading Company & anr., (2003) 5 SCC 437); M/s. Anand Button Ltd. Vs. State of Haryana & Ors., 2005 AIR SCW 67.

The Court has no competence to issue a direction contrary to law. (Vide Union of India & Anr. Vs. Kirloskar Pneumatic Co. Ltd., (1996) 4 SCC 453; State of U.P. & Ors. Vs. Harish Chandra & Ors., (1996) 9 SCC 309; and Vice Chancellor, University of Allahabad & Ors. Vs. Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264).

In State of Punjab & Ors. Vs. Renuka Singla & Ors. (1994) 1 SCC 175, dealing with a similar situation, the Hon'ble Apex Court observed as under:-

"We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations."

Similarly, in Karnataka State Road Transport Corporation Vs. Ashrafulla Khan & Ors., JT 2002 (1) SC 113, the Hon'ble Apex Court has held as under:-

"The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injected by law."

In view of the above, we are not in a position to help the petitioner and we do not find any cogent reason to interfere with the well-reasoned judgment of the learned Single Judge.

The Special Appeal is, therefore, dismissed. The interim order, if any, stands vacated.

Dt/- 16.12.2005



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