SPA/671/2018 of Jagdish Chandra Vs State Of Uttarakhand AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Special Appeal No. 849 of 2018WithDelay Condonation Application No. 16380 of 2018Manoj Kumar Sharma & another. ..………. Appellants Versus State of Uttarakhand & others. ..………. Respondents

Special Appeal No. 671 of 2018

Jagdish Chandra. ..………. Appellant Versus State of Uttarakhand & others. ..………. Respondents

Mr. Subhash Upadhyaya, Advocate for the appellants. Ms. Prabha Naithani, Brief Holder for the State of Uttarakhand / respondents.

COMMON JUDGMENT

Coram: Hon’ble Ramesh Ranganathan, C.J. Hon’ble Ramesh Chandra Khulbe, J.

Dated: 6[th] December, 2018

RAMESH RANGANATHAN, C.J. (Oral)

Since we find no merit in the appeals and are inclined to dismiss them, it is immaterial whether or not the defects pointed out by the Registry should now be permitted to be cured. For the reasons stated in the accompanying affidavit, the delay in filing Special Appeal No. 849 of 2018 is condoned. The Delay Condonation Application stands disposed of, accordingly.

2. The Government of Uttarakhand issued two orders, one of which provided 10% horizontal reservation in favour of those who had participated in the struggle for separate State, and the other for providing appointment, by direct recruitment in Class III and IV posts, to those who had participated in the struggle to attain separate State. Both these Government Orders were struck down by Division Bench of this Court in its order in Writ Petition (PIL) No.67 of 2011 dated 07.03.2018. While both the Government Orders are dated 11.08.2004, they were eventually struck down by this Court only by its order dated 07.03.2018.

3. While the petitioner in WPSS No.1385 of 2014 was appointed on 25.11.2013, his services were terminated by order dated 20.08.2014 on the ground that there was an interim order in Writ Petition (PIL) No.67 of 2011 dated 26.08.2013 restraining the Government from making any such appointments.

4. Mr. Subhash Upadhyaya, learned counsel for the appellants-writ petitioners, would submit that, since the order of this Court striking down both the Government Orders is dated 07.03.2018, it would apply only from that date, and not prior thereto; consequently, appointments made earlier cannot be set at naught on the basis of subsequent decision of the High Court; the interim order passed in Writ Petition (PIL) No.67 of 2011 on 26.08.2013 related to appointment to Class III and IV posts, by direct recruitment, from among those who had participated in the movement for separate State, and not with respect to the Government Order providing 10% horizontal reservation; and since the Government Order, whereby 10% horizontal reservation was prescribed, was not under challenge in Writ Petition (PIL) No.67 of 2011 initially when the interim order was passed on 26.08.2013, the said interim order did not justify the appellants-writ petitioners’ services being terminated on 20.08.2014.

5. declaration of law by this Court would operate from the date on which the Government Order was issued i.e. 11.08.2004 as judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce ‘new rule’ but to maintain and expound the ‘old one’. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the Court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. [Asstt. Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd., 2008 (230) E.L.T. 385 (S.C.)].Since both the Government Orders, providing 10% horizontal reservation, and reservation in Class III and IV posts, to those who had participated in the struggle for the creation of new State, have been struck down, the appellant-writ petitioner cannot claim any right of appointment under either of the two Government Orders.

6. With regards the appellant-writ petitioner’s plea of discrimination and the contention that, while others similarly situated were permitted to remain, the appellant-writ petitioner was not, it cannot be lost sight of that it is not even the appellant-writ petitioner’s case that his appointment is valid even though both the Government Orders have been struck down as ultravires and illegal. The appellant-writ petitioner’s claim of parity with others, who were appointed under the said Government Orders, is claim of parity in illegality.

7. In Chandigarh Administration & another vs. Jagjit Singh & another, reported in AIR 1995 SC 705, the Supreme Court observed thus:-

“…………. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at little length. Generally speaking, the mere fact that the respondent-authority has passed particular order in the case of another person similarly situated can never be the ground for issuing 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 writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such purpose. Merely because the respondent-authority 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 law - indeed, 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 basis for its repetition. By refusing todirect the respondent-authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for 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 negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be lawful and justified one it can be followed and similar relief 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 in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness 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 course - barring exceptional situations - would neither be advisable nor desirable. 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 particular order has been passed or particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise………

(emphasis supplied).

8. In the light of the law declared by the Supreme Court, in the aforesaid judgment, the plea of discrimination must fail.

9. Mr. Subhash Upadhyaya would place reliance on the order passed in Interlocutory Application Nos.15 and 16 and batch in Writ Petition (C) No.274 of 2014 (Ram Singh & others vs. Union of India), wherein the Supreme Court, in the exercise of its jurisdiction under Article 142 of the Constitution of India, classified the employees therein into three categories and, while those in categories 1 and 2 were held entitled to the benefit of appointment, and to be considered for appointment, the third category was denied such protection. Learned counsel for the appellants would seek similar relief, as was granted by the Supreme Court in the aforesaid order.

10. We must express our inability to accede to the plea of Mr. Subhash Upadhyaya for grant of similar relief, since the jurisdiction conferred on the Supreme Court under Article 142 of the Constitution of India is not available to the High Courts under Article 226 of the Constitution. The Constitution has, by Article 142, empowered the Supreme Court to make

such orders as may be necessary “for doing complete justice in any case or matter pending before it”, which authority the High Court does not enjoy. The jurisdiction of the High Court, in writ proceedings, is circumscribed by limitations which cannot be transgressed on the whim or subjective sense of justice varying from Judge to Judge. [State of Punjab v. Surinder Kumar, (1992) 1 SCC 489]. The power which is available to the Supreme Court under Article 142 is not available to the High Courts. [Chairman, Grid Corpn. of Orissa Ltd (Gridco) v. Sukamani Das, (1999) 7 SCC 298]. The power conferred on the High Court, under Article 226 of the Constitution of India, is not on par with the constitutional jurisdiction conferred upon the Supreme Court under Article 142 of the Constitution of India. [State of U.P. v. Johri Mal, (2004) 4 SCC 714; State of H.P. v. parent of Student of Medical College, (1985) 3 SCC 169 and Asif Hameed v. State of J&K, (1989) Supp. 2 SCC 364]. Although the High Court may pass an order for doing complete justice to the parties, they do not have the power akin to Article 142 of the Constitution of India. [Johri Mal; Guruvayoor Devaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546; B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749]. Exercise of the extraordinary jurisdiction, constitutionally conferred on the Supreme Court under Article 142(1) of the Constitution, can be of no guidance on the scope of Article 226. [State of Haryana v. Naresh Kumar Bali, (1994) 4 SCC 448; State of H.P. v. Mahendra Pal, (1995) Supp. 2 SCC 731].

11. The petitioners cannot, therefore, seek similar direction before the High Court in proceedings under Article 226 of the Constitution of India as these directions were issued by the Supreme Court in the exercise of its powers under Article 142 of the Constitution of India. This power has been conferred only on the Supreme Court, and its exercise is not dependent or conditioned by any statutory provision. (Mohd. Anis v. Union of India, (1994) SCC Supp. 1 145; Chandrakant Patil v. State, AIR 1998 SC 1165). The plenary powers, under Article 142 of the Constitution, inheres in the Supreme Court, and exists independent of the statutes with view to do complete justice between the parties. (Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2005 SC 972). The phrase “complete justice” in Article 142

is word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution. (Ashok Kumar Gupta v. State of U.P., (1997) 3 SCR 269).

12. Viewed from any angle, we see no reason to interfere with the order under appeals. Both the appeals fail and are, accordingly, dismissed.

(Ramesh Chandra Khulbe, J.) 06.12.2018

(Ramesh Ranganathan, C. J.) 06.12.2018