IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18029 of 2008 Deepak Kumar, son of Sri Ramchandra Prasad Singh, resident of village- Sare, P.O.- Sare, Police Station- Sare, District- Nalanda. …. Petitioner. Versus 1. The State Of Bihar, 2. The Director General of Police-cum-Inspector General of Police, Bihar, Patna. 3. The Inspector General of Police (Administration), Bihar, Patna. 4. The deputy Inspector General of Bihar, Purnea Range, Purnea. 5. The Superintendent of Police, Katihar. 6. The surgent Major, Police Line, Katihar. …. Respondents. ----------- 2/ 05/08/2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was appointed as a constable in the police on 30.6.1992 vide Katihar District Order No.115/92. He joined and started discharge of duties. His services were terminated by an order dated 8.1.2003 with immediate effect on the directions of the Director General of Police, Bihar. The petitioner came to this Court in C.W.J.C. No.10671/03 . Noticing that the order impugned was in violation of principles of natural justice, the order was set aside and the matter remanded to proceed afresh in accordance with law. Departmental proceedings were then initiated against him on 20.10.2006. The charge was that he came 2 to be appointed without any advertisement in a manner contrary to law. The enquiry officer gave his report on 31.3.2007 returning a finding that the appointment was contrary to law as no advertisement had been made and procedures followed. A second show cause was then issued to the petitioner on 16.6.2007 duly replied after which the petitioner was dismissed from service by an order dated 2.8.2007. His appeal against the same has also been dismissed on 17.4.2008. Learned counsel for the petitioner submitted that dismissal from service after nearly 15 years of service was not proper and even if an advertisement had not been issued considering the long years of service it was at best a case of irregular appointment which the respondents should have regularized. The next submission was that the respondents were enquiring into alleged illegal appointments made by one Shri S.K. Saxena, the then D.G.P. as evident from a letter dated 22.12.2002 the petitioner was not an appointee of Shri Saxena and therefore there was no occasion for the respondents to reopen the matter of appointment of the petitioner under that guise. Equity was invoked to question the order of termination after over 16 long years of service. Article-14 of the Constitution of India was then invoked to submit that one Trilokinath Ojha who was 3 appointed along with the petitioner, as evident from the appointment letter, Annexure-3, was likewise terminated and the order set aside by this Court for the same reason has been retained in service while the petitioner has been singled out for discriminatory treatment. Reliance was next placed on an order of this Court in C.W.J.C. No.3461/04 upholding the appointment in the police without advertisement which, learned counsel submits, has been upheld in the Letters Patent jurisdiction also. Further reliance was placed on a Bench decision reported in 2010(2) P.L.J.R. 947 (Smt. Kiran Kumari Sinha vs. the State of Bihar & Ors.). The last submission was that there were grave infirmities in the departmental proceedings inasmuch as certain documents which the petitioner considers crucial for proper adjudication was not supplied to him. Learned counsel for the State from the counter affidavit submitted that the petitioner had participated in the departmental proceedings when the finding of an appointment without an advertisement remains undisturbed. The appointment being palpably illegal the writ petition ought to be dismissed. In a normal departmental proceeding the delinquent has to be made aware of the charge, furnished the documents and list of witnesses on which the charge 4 is proposed to be proved. The onus then lies on the prosecution to prove the charge by oral and documentary evidence. Thereafter, the onus shifts on the delinquent to put forth his defence to repel the charge. But where the charge itself is not denied and stands admitted, the prosecution is required to prove nothing. The charge having been admitted there was no occasion for the prosecution to prove anything to enable the defence to know the allegations against it and reply to it. The admission of the charge only leads to explanations which the disciplinary authority may or may not accept. In AIR (1972) S.C. 32 (Channabasappa Basappa Happali, Appellant v. The State of Mysore, Respondent) the appellant was a police constable who was dismissed after departmental proceedings. During the proceedings he admitted the charge of unauthorized absence and his conduct unbecoming of a police constable by sitting on a protest in the temple premises when he urged that he did so in the hope that saner sense would prevail upon the officials. It was held at paragraph No.4 as follows:- “4. The pleas of the petitioner are quite clear; in fact he admitted all the relevant facts on which the decision could be given against him and therefore it cannot be stated that the enquiry was in breach of any principle of natural justice. At an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to 5 give his own version or explanation about the evidence on which he is charged and to lead his defence. In this case, the facts were two-fold, that he had stayed beyond the sanctioned leave and that he had proceeded on a fast as a demonstration against the action of the authorities and also for that he called the upliftment of the country etc. These facts were undoubtedly admitted by him. His explanation was also there and it had to be taken into account. That explanation is obviously futile, because persons in the Police Force must be clear about extension of leave before they absent themselves from duty. Indeed this is true of every one of the services, unless of course there are circumstances in which a person is unable to rejoin service, as for example when he is desperately ill or is otherwise reasonably prevented from attending to his duties. This is not the case here. The petitioner took upon himself the decision as to whether leave could be extended or not and acted upon it. He did go on a fast. His later explanation was that he went on a fast for quite a different reason. The enquiry officer had to go by the reasons given before him. On the whole therefore the admission was one of guilty in so far as the facts on which the enquiry was held and the learned Single Judge in the High Court was, in our opinion right in so holding.” This view has been reiterated in (2008) 5 S.C.C. 569 ( CHAIARMAN & MANAGING DIRECTOR, V.S.P. AND OTHERS Versus GOPARAJU SRI PRABHAKARA HARI BABU) relying upon Section-58 of the Indian Evidence Act that charges admitted in a departmental proceeding need not be proved. The law stands settled that where the charges are admitted, procedural lapses, if any, in the conduct of the departmental proceedings, are inconsequential. Lapses of 6 the nature which may be fatal to a departmental proceeding otherwise lose their relevance when the charge is admitted. The petitioner does not dispute the correctness of the recitals in the enquiry report where the committee emphasized that he came to be appointed without an advertisement, but asserts that it was not his fault. His defence is that due to paucity of constables the Director General of Police had directed his appointment. This was in pursuance of certain orders issued by the then Chief Minister of State of Bihar to make appointments. Any appointment on a Government post has to be made in a manner consistent with Article-14 of the Constitution of India which includes the publication of an advertisement and selection after upon competitive merit. Government employment is not anybody’s private fiefdom to be doled out as a benefit or grace. Employment under the Government has been considered as a national wealth in which each citizen has a right to be made aware of the opportunity to apply and to be considered. If an appointment has been made contrary to law, it has been held in (2005) 12 SCC 495 (MANJEET KAUR AND OTHERS Versus SALVATION ARMY MACROBERT HOSPITAL) that even a service tenure of 20 years was 7 inconsequential. Equity follows the law. Sympathy cannot supplant the law. Equity or sympathy divorced from the law degenerates into individualized justice. It, per se, makes justice arbitrary and contrary to Article-14 of the Constitution of India. The reliance by the petitioner on the order in C.W.J.C. No.3461/04 appears completely misplaced. That was a case where an appointment was made without advertisement for certain acts of heroism by the appointee. That distinguishes the case of the petitioner completely. Article-14 of the Constitution of India does not operate in negativity to claim parity in illegality. If anyone was appointed along with the petitioner and is being meted out a different treatment, the petitioner cannot seek a mandamus to perpetuate illegality from the Court. The respondent State is required to treat its citizens and employees even handedly. Favouritism and nepotism have no place in a society governed by the rule of law. Justice whether by the courts or by the administrators has to be even handed and unbiased. The administrator becomes answerable when it is questioned. This Court leaves that aspect to the respondents in the hope that they shall act in accordance with law. 8 In AIR 2006 SUPREME COURT 1142 (Kastha Niwarak G. S. S. Maryadit, Indore v. President, I. D. A.) it has been held at paragraph -8 as follows:- “8. .So far as the allotment to non-eligible societies is concerned even if it is accepted, though specifically denied by the Authority, to be true that does not confer any right on the appellants. Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative equality.” The reliance by the petitioner on the case of Kiran Kumar Sinha appears completely misconceived. The Court therein relied upon (2006)4 S.C.C. 1 (Secretary, State of Karnataka vs. Uma Devi) to save the appointee. The Supreme Court in the case of Uma Devi (supra) while holding that persons who had put more than 10 years of service has explicitly clarified at paragraph-53 that the direction therein relates only to persons appointed irregularly and not illegally. This 9 Court has already held that the appointment of the petitioner was completely illegal. No relief can be granted to him in light of the discussions contained in the case of Uma Devi (supra). In light of the aforesaid discussion, this Court arrives at the conclusion that the present writ application has no merit. It is accordingly dismissed. KC ( Navin Sinha, J.)