WP(C) No. 5331 of 2009 · Gauhati High Court

Before coming to the merit of the present appeal, it is apposite to take note of the order, which stood impugned in the writ petition, whereby the servi ce of the writ petitioner (respondent herein) had been terminated, the order hav ing been issued, on 23.06.2009, by the Director of Education, Bodoland Territori al Council, Kokrajhar. The order, in question, reads as under: OFFICE OF THE DIRECTOR OF EDUCATION, BTC, KOKRAJHAR (cid:28)GOVT. OF ASSAM ORDER Dated Kokrajhar the 23rd June/2009. No. DE/BTC/Apptt-124/09/278, In exercise of power conferred upon the Director of Education vide Secretary, BTC’s No. BTC/EDN(EI)-35/2005/1, dtd. 13-09-2005 and in pursuance of order Secretary BTC’s vide letter No. BTC/EDN/TERM-514/2008/3, d td. 6th Nov/2008, the services of Krishna Haloi, AT, Uttar Kamrup MEM (doubtful) is hereby terminated from service with immediate effect due to non-fulfilling t The records of holding interview and preparation of score sheets by the Advertisement issued by the DEEO, D.I. of Schools of Nalbari inviting ap Approval of State Level Empowered Committee of the personal department o he following terms & conditions. A. plication as a candidates to fill-up the posts in the schools. B. f Govt. of Assam to fill-up the posts. C. interview Board. D. up the selected candidates. E. Sd/- R. S. Borgayary, Director of Education, Bodoland Territorial Council, Kokrajhar Approval of EBAC for the appointment. List of selected candidates indicating vacancies of the schools to fill- Memo No. DE/BTC/Apptt-124/09/278-A, Dated Kokrajhar the 23rd June/2009. Copy to: 1. on. 2. 3. 4. 5. C, Kokrajhar, for information. 6. 7. 8. The PS to the Executive Member, Education, BTC, Kokrajhar, for informati The Secretary, Education, BTC, Kokrajhar, for favour of information. The DEEO, Baska, Mushalpur, for information. The BEEO, Baska, Mushalpur/Tamulpur/Tihu-Barama for information. Sri Diganta Das, Sr. Advocate, Gauhati High Court & Standing counsel, BT The Headmaster/Head teacher, Uttar Kamrup MEM for information. The person concerned. Office guard file. Sd/- R. S. Borgayary, Director of Education, Bodoland Territorial Council, Kokrajhar (cid:29)

From a bare reading of the order, dated 23.06.2009, which has been set a side by the learned Single Judge, what can be clearly gathered from the order, d ated 23.06.2009 (whereby the writ petitioner’s service was terminated), is the f act that there were four specific grounds, which were mentioned in the order of termination. These grounds were as follows: (cid:28)1. That no advertisement had been issued by the DEEO, D.I. of Schools, Nalbari, inviting applications from eligible candidates to fill up the posts in the scho ols. 2. That necessary approval of State Level Empowered Committee of the Personnel D epartment, Govt. of Assam, to fill up the posts had not been taken. 3. That there was no record available with regard to holding of interview and/or preparation of score-sheets by the interview Board.

4. No list of selected candidates, indicating vacancies of the schools, was avai lable to appoint the selected candidates.

Necessary approval of EBAC for the appointment had not been obtained. (cid:29) Thus, the order, dated 23.6.2009, is not a vague order inasmuch as it as 5. signed grounds, which led to the termination of the writ petitioner’s appointmen t. There is no doubt that the order of termination was not preceded by any noti ce to show cause against the proposed termination. This by itself is, however, not sufficient, under the law, to set aside an order of termination unless the w rit petitioner can show that absence of notice has caused prejudice to him. The reason for insisting on a notice before termination of an employee’s service is that the employee must receive an opportunity to show cause against the grounds on which his appoint is sought to be terminated. This does not, as a corollary , necessarily mean that an order of termination must be set aside, whenever it i s not preceded by a notice to show cause.

In Syndicate Bank v. Venkatesh Gururao Kurati, it was held: 18. & To sustain the allegation of violation of principles of natural justice, o ne must establish that prejudice has been caused to him for non-observance of pr inciples of natural justice. (cid:29) One may also refer to the case of Haryana Financial Corporation Vs. Kail 6. ash Chandra Ahuja, reported in (2008) 9 SCC 31, wherein the Court, referring to the case of ECIL Vs. B. Karunakar, reported in (1994) SCC Suppl (2) 391, pointed out that even failure to supply the report of the enquiry before imposition of punishment on the delinquent employee would not ipso facto result in the proceed ings being declared null and void nor would, in such a case, the order of punish ment become non est and ineffective and that it is for the delinquent employee t o plead and also prove that non-supply of enquiry report has caused prejudice to him and that miscarriage of justice has resulted thereby and, if the employee f ails to satisfy the Court on this score, the order of punishment cannot be autom atically set aside. The case of Secretary, Andhra Pradesh Social Welfare Residential Educati 7. onal Institutions Vs. Pindiga Sridhar, reported in (2007) 13 SCC 352, is also on e of the cases, where the Court laid down that violation of the principles of na tural justice must result in prejudice to the employee concerned in order to ena ble the Court to interfere with an order passed adverse to his interest. In the case of Pindiga Sridhar (supra), the respondent applied for appointment, on com passionate ground, as a dependant of late P. Andhru without disclosing that his mother was in State’s service, as teacher, in a High School. The Court, in Pindi ga Sridhar (supra), pointed out that by suppressing that his mother was already in Government service, the petitioner had committed fraud and, in the face of su ch admitted facts, the order of termination of his service could not have been i nterfered with merely because no notice to show cause was given to him, speciall y, when no prejudice could be shown to have been caused to him as a result of th e omission to give him the notice to show cause, if any, before termination of h is service.

In the case at hand, except pleading to the effect that no notice to sho w cause was given before the order of termination was passed, it was neither ple aded nor proved as to what prejudice had been caused to the writ petitioner-resp ondent as a result of the omission to give notice to the petitioners before thei r services were terminated.

In order, therefore, to determine if any prejudice has been caused to th e petitioner-respondent by not giving him any notice to show cause, it is necess ary to look into the background of not only the order of appointment of the peti tioner, as an Assistant Teacher, but also the subsequent admitted developments, which led to the termination of the petitioner-respondent’s appointment. The ad mitted facts may, now, be taken note of: The writ petitioner-respondent’s appointment commenced with the order, 10. dated 27.10.1998, passed by the District Elementary Education Officer, Nalbari. This order, being the basis of the entire edifice of the writ petitioner-respon dent’s case, is extracted below: (cid:28)OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER, NALBARI (ASSAM) ORDER Subject to termination without notice and without assigning any reason thereof S ri Krishna Haloi PU is hereby appointed with effect from the date of his joining as Asstt. Teacher in the scale of pay Rs. 1185-20-1225-30-1435-40-1555-EB-1635- 50-2035-60-2395/- p.m. plus other allowances as admissible under Rules in Uttar Kamrup ME Madrasa School against the sanctioned post vide Govt. of Assam sanctio ning letter No. PFA/337/95/pt-1/152 dated 24/4/98 and DEE’s communicated letter No. EPD/OB/6/96/156 dtd. 24th April/98. The appointment is made as per approval of Sub Divisional Advisory Board, Elemen tary Education, BAC, Nalbari. The examination will be debitable to the Head of account 02202-Conl-Edn-III-Cent rally Sponsored Scheme-01-Ele-Edn-102-Assistance to Non-Govt. Pry. School (C) Op eration Black Board (I) Salary (Plan) 1998-99. Dist. Elementary Education Officer, Nalbari. Memo No. DE/Nal/ESSTT-94/3/BAC/pt-I/2940-47, dtd. Nalbari the 27th Oct/98. (cid:29) Sd/- A. Choudhury,

A bare glance on the above order of appointment clearly shows that the a ppointment of the writ petitioner-respondent was not against any regular sanctio ned post, but against a post, which had been created pursuant to a Centrally Spo nsored Scheme and this scheme was, admittedly, known as Operation Black Board. The order of appointment of the writ petitioner-respondent also clearly shows th at so long as the scheme was to continue, the appointment of the writ petitioner -respondent was to continue unless, otherwise terminated earlier. The writ petit ioner’s appointment was, it is transparent, inherently temporary in nature depen ding upon the continuation of the scheme knows as Operation Black Board (in shor t, ’OBB’). The post, to which the writ petitioner-respondent stood appointed, w as, thus, a ’plan’ post and not a ’non-plan’ post. The difference between a ’pl an’ post and a ’non-plan’ post is that a ’plan’ post is a post under a temporary scheme or plan meaning thereby that so long as the scheme or plan continues, th e appointment continues. As against this nature of appointment of ’plan’ post, appointment against ’non-plan’ post means that the post is perpetual in nature u nless done away with.

The writ petitioner-respondent’s appointment, as an Assistant Teacher, b y order, dated 27.10.1998, aforementioned was, thus, we may reiterate, inherentl y temporary in nature with no permanency attached thereto in the sense that that the appointment would have continued as long as the scheme, sponsored by the Ce ntral Government and commonly known as OBB (Operation Black Board) continued.

13. What is also required to be noticed is that the order, dated 27.10.1998 (whereby the writ petitioner stood initially appointed) was in consequence of th e letter, dated 24.04.1998, which had been issued by the Director of Elementary Education, Government of Assam, to the District Elementary Education Officer, Na lbari, informing him of sanctioning of posts of teacher for primary schools unde r the scheme, namely, Operation Black Board. The letter, dated 24.04.1998, read s as under: (cid:28)GOVT. OF ASSAM OFFICE OF THE DIRECTOR OF ELEMENTARY EDUCATION: ASSAM: KAHILIPARA; GUWAHATI-19 NO. CPO/08/6/96/156, dated Kahilipara the 24th April/98 To, The District Elementary Education Officer, Nalbari (cid:29) Sub: Sanctioning of post for Upper Primary schools under the scheme of Operation Black Board. Ref: Govt. letter No. PMA. 337/95, Pt-1/152 dtd. 24.4.98. Sir, With reference to the above, I have the honour to communicate the sancti on of posts under the scheme of Operation Black Board Two Hundred Thirteen No. o f schools have been selected under the scheme for your District (list enclosed) and each school will receive only one post and accordingly two hundred thirteen No. of posts are hereby sanctioned for your district.

You are further requested to see to it that no school in the enclosed list gets more than one post and no school outside the list is considered for the purpose of entertainment of post. You are therefore requested in strictly follow the above guideline while utilizing the sanctioned posts. These posts of Asstt. Teachers bear scale of pay of Rs. 1185-2395/- p.m. plus other allowances as admissible under the Rules and are created for the per iod upto 28-02-99 from the date of entertainment. These posts will be abolished after the 9th plan period is over and the incumbents will have to be adjusted/a bsorbed in the existing vacancies. The expenditure will be debitable to the Head of Account (cid:28)2202-General E ducation-III-Centrally Sponsored Scheme 01-Ele-Education 102-Assistance to non-G ovt. Pry. Schools (C)-Operation Black Board (i) Salary (Plan) (cid:29) during 1998-99. Elementary Education, Assam, Kahilipara, Guwahati-19 (cid:29) Yours faithfully, Director From the letter, dated 24.04.1998, what becomes crystal clear is the fac 14. t that the post, against which the writ petitioner-respondent had come to be app ointed, was a ’plan’ post under OBB scheme and his post, along with all other su ch posts, were to be abolished with the end of the ’ninth plan’ and the incumben ts were to be adjusted/absorbed, in the existing vacancies, if any.

A combined reading of the letter, dated 24.04.1998, and 17.08.2000, mak e it abundantly clear that the writ petitioner-respondent’s post was a ’plan’ po st and unless the writ petitioner-respondent’s appointment was converted into a regular appointment by appointing him to a regular post against a ’non-plan’ pos t, the writ petitioner-respondent’s appointment was to be over on 28.02.1999. W hat logically follows from the above discussion is that the writ petitioner-resp ondent could have been adjusted/absorbed against a ’non-plan’ post, but the ques tion of converting the ’plan’ post into a ’non-plan’ post did not arise, because the scheme did not perceive any such conversion.

What is, now, important to note is that the order, dated 17.08.2000, whi ch, according to the writ petitioner-respondent, is the order of conversion of h is plan post into a ’non-plan’ post, read as under: (cid:28)OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER, NALBARI (ASSAM) Shri Krishna Haloi, Asst. Teacher of Uttar Kamrup ME Madrasa School, appointed u ORDER nder (cid:28)plan (cid:29) head of account is hereby converted to (cid:28)non plan (cid:29) post vide DEE’s or der Memo No. EAA/75/96 dtd. 17.9.08 vide Sri Durgeswar Sarma A/T, Kawali ME Scho ol retired. The salary expenditure will be debitable under the Non Plan Head of accounts. Dist. Elementary Education Officer, Memo No. DEEO/Nal/Convert/28/5127-33, dated 17/8/2000 (cid:29) Nalbari, Sd/- A. Choudhury,

A bare reading of the order, dated 17.08.2000, aforementioned clearly sh ows that the order had been made without the concurrence of the Department of Fi nance, Government of Assam, which, admittedly, could not have been done. As alr eady mentioned above, there was no question of conversion of a ’plan’ post into a ’non-plan’ post, because such conversion would mean creation of a sanctioned ’ non-plan’ post. As there was no creation of any sanctioned post against ’plan’ post, the question of conversion of ’plan’ post into a ’non-plan’ post did not a rise at all. It is on the basis of such ex facie illegal order of conversion, d ated 17.08.2000, that the petitioner’s appointment was confirmed in the said pos t by order dated 31.12.2008, which was issued by the District Elementary Educati on Officer, Baska. This order read as under: OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER, (cid:28)GOVT. OF ASSAM BASKA ORDER On the strength of order vide Memo No &./17/83-pt/76 dated 18.12.1997, Se cretary of Edn. Department to the Govt. of Assam..vide of Sri Krisna Haloi, A/T of Uttar Kamrup M.E. Madrassa, Naoshali, under Baska Block is hereby confirmed h is service as he is holding the post with effect from 01.12.98. Sd/- illegible District Elementary Education officer, Baska (cid:29)

The order, dated 31.12.2008, similar as the order, dated 17.08.2000, afo rementioned, shows that the order, dated 31.12.2008, had no concurrence of the D epartment of Finance, Government of Assam. Thus, the regular appointment of the writ petitioner-respondent was, admittedly, without approval of the State Level Empowered Committee and without concurrence of the Department of Finance, Gover nment of Assam. This apart, as the appointment was not against any sanctioned ’ plan’ post or against any regularly sanctioned post, the appointment could not h ave continued beyond the scheme, which has been referred to as OBB.

Even if, therefore, one assumes, for a moment, that the writ petitioner- respondent’s appointment had been preceded by an advertisement, the fact of the matter remains that the writ petitioner-respondent’s appointment, having precede d by an advertisement, was against a ’plan’ post, which was to continue till 28. 02.1999 and, thereafter, the petitioner-respondent was required to be adjusted/ absorbed in the existing vacancy. However, the petitioner-respondent was, admit tedly, not absorbed/adjusted against any existing vacancy. What was done was me re issuance of an order of conversion of his ’plan’ post into a ’non-plan’ post without any concurrence from the Department of Finance, Government of Assam, tho ugh a regular sanctioned post could not have been created without the concurrenc e of the Finance Department.

When asked by this Court as to how the petitioner-respondent’s ’plan’ po st came to be converted into a ’non-plan’ post without concurrence of the Depart ment of Finance, Government of Assam, nothing could be submitted on behalf of th e writ petitioner-respondent. The learned Single Judge, while allowing the writ petition, appears to have omitted to note this glaringly noticeable aspect of t he writ petitioner’s case.

From a reading of the order, dated 28.07.2011, whereby the writ petitio n was allowed, it is clear that the learned Single Judge had noticed that the wr it petitioner’s appointment was under Operation Black Board, but the error was c ommitted by the learned Single Judge by treating the appointment of the writ pet itioner as a regular appointment against a sanctioned post and thereby not notic ing the fact that the writ petitioner’s appointment was inherently temporary in nature, dependent upon the scheme, which had been floated by the Central Governm ent under a Centrally Sponsored Scheme known as Operation Black Board (OBB). M ere receipt of regular salary by the petitioner, as an Assistant Teacher, cannot make his order of appointment legal if the same was, otherwise, illegal as in t he case at hand. The submissions of Ms. Bordoloi, learned counsel for responden t Nos. 2 and 3 in the writ petition, that since the appointment of the writ peti tioner was illegal, all subsequent orders, such as, order for payment of salary to the writ petitioner, order confirming his service, etc., are non est in law, had substantial force, but were not appropriately appreciated by the learned Sin gle Judge. The observations made, and the law laid down, in Mohd. Abdul Kadir a nd another vs. Director General of Police, Assam and others, reported in (2009) 6 SCC 611, are aptly applicable to the facts of the present case. The relevant observations made, in Mohd. Abdul Kadir (supra), read as under: (cid:28)13. The fact that the appellants were employed under the PIF Additional Scheme is not disputed. The duration of the PIF Additional Scheme under which they are employed was initially two years, to be reviewed for continuation along with the original PIF Scheme. The said Scheme is being extended from time to time and is being continued. If the temporary or ad hoc engagement or appointment is in con nection with a particular project or a specific scheme, the ad hoc or temporary service of the persons employed under the project or scheme would come to an end , on completion/closure/cessation of the project or the scheme.

The fact that the Scheme had been in operation for some decades or that the employee concerned has continued on ad hoc basis for one or two decades would no t entitle the employee to seek permanency or regularisation. Even if any posts a re sanctioned with reference to the Scheme, such sanction is of ad hoc or tempor ary posts coterminous with the Scheme and not of permanent posts.

15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such project or scheme cannot c laim any right to continue in service, nor seek regularisation in some other pro ject or service. [See Bhagwan Dass v. State of Haryana, Delhi Development Hortic ulture Employees’ Union v. Delhi Admn., Hindustan Steel Works Construction Ltd. v. Employees’ Union, U.P. Land Development Corpn. v. Amar Singh, Madhyamik Shiks ha Parishad, U.P. v. Anil Kumar Mishra, State of Karnataka v. Umadevi (3), India n Council of Medical Research v. K. Rajyalakshmi and Lal Mohammad v. Indian Rail way Construction Co. Ltd.] In view of this settled position, the appellants will not be entitled to regularisation. (cid:29)

From the above observations, made in Mohd. Abdul Kadir (supra), what bec omes clear is the fact that, when an appointment is made under a scheme, which i s temporary in nature, continuation of the scheme for decades would not change t he nature of appointment and would not entitle a person to seek regularization i n service. In the case at hand, if the writ petitioner-respondent was to be con tinued in service, then, he ought to have been appointed against a regular sanct ioned ’non-plan’ post. This apart, even such an appointment would have required fulfillment of the conditions of recruitment to the post of Assistant Teacher, which has, admittedly, not been done in the present case. While considering the impugned judgment, we notice that the learned Sing 23. le Judge has observed, in the order, dated 28.07.2011, that the writ petitioner’ s appointment was against a substantive vacancy and against regular pay scale. In fact, the learned Single Judge has mentioned, in the judgment under appeal, t hat, initially, the appointment of the writ petitioner was against a ’plan’ post , but the same was brought under ’non-plan’ post by order, dated 17.08.2000. We notice that the learned Single Judge did not make enquiry as to how the ’plan’ post came to be converted into a ’non-plan’ post. Even when asked in the appeal at hand, the writ petitioner-respondent had no answer. This, in itself, shows that the ’plan’ post could not have been converted into a ’non-plan’ post in the manner as has been done in the present case.

Yet another reason, assigned by the learned Single Judge, is that the wr it petitioner had been in continuous service for the last 10 (ten) yea rs. We hold, in this regard, that the length of period of an illegal appointmen t cannot clothe the appointment with legality and when the appointment of the wr it petitioner had been against a ’plan’ post and the same was illegally converte d into a ’non-plan’ post, the fact that he had continued in service for 10 years would be of no consequence at all. (See Mohd. Abdul Kadir and another vs. Dire ctor General of Police, Assam and others, reported in (2009) 6 SCC 611)

In support of the appellant’s case that as the order of termination was not preceded by any notice to show cause, the termination was illegal, Mrs. Saik ia, learned counsel, has relied upon a number of judgments, namely, Harbhajan Si ngh and others vs. Nawanshahar Central Coop. Bank, reported in (2004) 10 SCC 606 , Aswani Kumar and others vs. State of Haryana and others, reported in (2005) 12 SCC 428, University of Bihar and others vs. Kamal Deo Thakur and others, report ed in (2005) 9 SCC 278, Mohd. Yunus Khan vs. State of Uttar Pradesh and others, reported in (2010) 10 SCC 539, and Satwati Deswal vs. State of Haryana and other s, reported in (2010) 1 SCC 126. While considering the decisions, which have been relied upon by Mrs. Sai 26. kia, learned counsel, it needs to be noted that all the cases, relied upon by Mr s. Saikia, are cases relating to misconduct. A misconduct is required to be pro ved by a regular enquiry and the enquiry can be held only upon serving charge-sh eet on the employee concerned provided that the employee denies the charge. As no enquiry had been held in the cases relied upon by Mrs. Sailia, learned counse l, the principle of natural justice was, obviously, held to have been violated, when the employee concerned had denied the charge and pleaded innocence and, on this ground, the orders of termination, in the said cases, were set aside. The present one is not a case of misconduct; rather, the present one is a case of ap pointment of a person, which is per se illegal and when questioned, the writ pet itioner-respondent could not justify the conversion of the post from ’plan’ post to a ’non-plan’ post.

In the circumstances, as indicated above, we find no force in the conten tion of Mrs. Saikia that the order of termination was bad in law, because no not ice to show case was given to the writ petitioner-respondent. The absence of no tice would have become material, had the petitioner been able to tell this Court , when questioned, as to what he would have said as regards the conversion of hi s ’plan’ post into a ’non-plan’ post and, that too, without the concurrence of t he Department of Finance of the State Government concerned. On this aspect of t he appeal, our observations, made in paragraph 6 of this judgment, are also of g reat relevance.

What is, now, required to be noted is that the writ petitioner-responden t’s appointment, by way of conversion of a ’plan’ post to a ’non-plan’ post, was illegal and since such conversion was ex facie illegal, it did not bind the Gov ernment to maintain the order of appointment of the writ petitioner-respondent.

One of the specific grounds of the termination of the writ petitioner-re spondent’s appointment was that the writ petitioner’s appointment was without is suance of any advertisement by the authority concerned. We have minutely peruse d the entire writ petition and we do not find that the writ petitioner-responden t has asserted in his writ petition, even mildly, that his appointment was made following any advertisement. Even when questioned in this appeal, nothing could be shown to have been pleaded or placed on record indicating that his appointme nt, under the Centrally Sponsored Scheme, commonly known as Operation Black Boar d, was pursuant to any advertisement. The writ petitioner-respondent was, thus, appointed by adopting a pick and choose method. Such an appointment is clearly against the fundamental guarantees of equality of employment under Article 14 an d 16 of the Constitution of India, which need to be scrupulously followed inasmu ch as these two Articles make it clear that no public employment shall be made w ithout giving all eligible candidates to have an opportunity to offer themselves for selection and appointment. The reliance, placed by Mr. Das, learned counse l, appearing on behalf of the Bodoland Territorial Council, on the case of Gover nment of Andhra Pradesh and others versus K. Brahmanandam and othrs, reported in (2008) 5 SCC 241, is not wholly incorrect. Mr. Das is also correct in referri ng to the case of State of Bihar and others versus Kameshwar Prasad Singh and an other, reported in (2000) 9 SCC 94.

Though it has been submitted by Mrs. Saikia that similar appointments ha d been made and have not been interfered with by the Court, suffice it to point out that the concept of equality, guaranteed by Article 14, is a positive concep t and it cannot be enforced in a negative manner. When any authority is shown t o have committed any illegality or irregularity in favour of any individual or g roup of individuals, others cannot claim the same illegality or irregularity to be extended to them on the ground of denial of similar treatment. The mere fact , therefore, that in some cases, the Government has not yet interfered with the order of appointment of the same nature, as is the nature of appointment of the present appellant, can be of no avail to the writ petitioner-respondent. Refere nce may be made, in this regard, as has been done rightly by Mr. Das, learned co unsel, to the case of State of Bihar versus Upendra Narayan Singh and others, re ported in (2009) 5 SCC 65 (See paragraph 33 to 38, 43, 44).

It may be pointed out here that, in State of Orissa and another versus Mamata Mohanty, reported in (2011) 3 SCC 436, it has been clearly held that once a Court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the Court to rectify the wrong rather than perpetuating the same. See also State of Manipur and others versus Y. Token Singh and others, reported in (2007) 5 SCC 6

5. In short, the mere fact that an authority has passed a particular order 32. in the case of another person, similarly situated, cannot be a ground for issuin g a writ in favour of the petitioner on the plea of discrimination if the order, passed in favour of the other person, is found to be contrary to law or not war ranted in the facts and circumstances of the case. Noticing that the High Courts , in exercise of their writ jurisdiction, have been passing orders to remove dis crimination and thereby asking the authorities concerned to repeat the illegal it y, the Supreme Court has expressed its anxiety on such approach and has laid dow n the position of law, in Chandigarh Administration & Anr. vs. Jagjit Singh and Anr., reported in (1995) 1 SCC 745, in the following words: (cid:28)8. We are of the opinion that the basis or the principle, if it can be called o ne, on which the writ petition has been allowed by the High Court is unsustainab le in law and indefensible in principle.

Since we have come across many such ins tances, we think it necessary to deal with such pleas at a little length. Genera lly speaking, the mere fact that the respondent authority has passed a particul ar order in case of another person similarly situated can never be the ground fo r issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be allowed and valid or it might not b e. 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 ca se, it is obvious that such illegal or unwarranted order cannot be made the basi s of issuing a writ compelling the respondent authority 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 re spondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat the illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done accor ding to law- indeed, wherever, it is possible, the Court should direct the app ropriate authority to correct such wrong orders in accordance with law - but eve n if it cannot be corrected, it is difficult to see how it can be made a basis f or its repetition. By refusing to direct the respondent authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can suc h illegal order constitute the basis for a legitimate complaint of discriminatio n. Giving effect to such please 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.

Of course, if in case the order in favour of the other per son is found to be a lawful and justified one it can be followed and similar rel ief can be given to the petitioner if it is found that the petitioners’ case is similar to the other persons’ case. But then why examine another person’s case i n his absence rather tan examining the case of the petitioner who is present bef ore the Court and seeking the relief. Is it not more appropriate and convenience to examine the entitlement of the petitioner before the Court to the relief ask ed for in the facts and circumstances of his case, than to enquire into the corr ectness of the order made or action taken in another person’s case, which other person is not before the case nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desira ble. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particu lar order has been passed or a particular action has been taken, the same must b e repeated irrespective of the fact whether such an order or action is contrary to law or otherwise.

Each case must be decided on its own merits, factual and il legal, in accordance with relevant legal principles. The orders and actions of t he authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial word. (What is the position in the case of orders passed by author ities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises (cid:29). (Emphasis is added)

Because of what have been discussed and pointed out above, we find ourse lves constrained to interfere with the impugned order, dated 28.07.2011, whereby the writ petition was allowed. This writ appeal, therefore, succeeds and the i mpugned order, dated 28.07.2011, is hereby set aside.

No order as to costs.