IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.998 of 2008 Subhash Poddar, son of late Ayodhi Poddar, resident of Village Azam Nagar, Police Station Azam Nagar (Barsoi), District Katihar. -------- Petitioner Versus 1. The State of Bihar through the Secretary, Personnel and Administrative Department, Bihar, Patna. 2. The Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna. 3. The Additional Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna. 4. The Compassionate Appointment Committee, Katihar through the Chairman, Compassionate Appointment Committee, Katihar. 5. The District Magistrate-cum-Chairman, Compassionate Appointment Committee, Katihar. 6. The Civil Surgeon-cum-Chief Medical Officer, Katihar. -------- Respondents For the Petitioner :- Mr. Ajay Kumar, Adv. Mr. Shankar Kumar Thakur, Adv. For the State :- Mr. Shashi Shekhar Prasad Sinha, A/C to G.P.-17 ----------- P R E S E N T HON’BLE MR. JUSTICE MIHIR KUMAR JHA (ORDER) (18.04.2011) --------- Mihir Kumar Jha, J. Heard Mr. Ajay Kumar learned counsel for the petitioner and Mr. Shashi Shekher Prasad Sinha, learned A/c to G.P.-17 for the State. 2. The petitioner assails the decision of the authority dated 15.6.2006, whereby and whereunder, his prayer for condoning the age limit for appointment on compassionate ground has been rejected. 3. Counsel for the petitioner would 2 submit that the Personnel Administrative and Reforms Department, while examining the case of the petitioner, had failed to take into account that in a similar cases of Kailash Chandra Mandal, the District Compassionate Appointment Committee in its meeting held on 17.9.1996 had chosen to condone the age limit for appointing them and since the case of the petitioner was similar, the authority was not justified in rejecting the prayer of the petitioner. 4. From the facts of this case, it is clear that the father of the petitioner had died on 15.3.1980 when the policy of the Government contained in Circular dated 12th July 1977 was in vogue, relevant portion whereof reads as follows:- ^^2- mi;qZDr dksfV ds ljdkjh lsod ds ifjokj ds lnL; dks in fo'ks"k ds fy, fu/kkZfjr vgZrk,W miyC/k gksa rFkk mudh mez fu/kkZfjr vk;q lhek ds vanj gks] fo'ks"k ifjfLFkfr esa lsok lafgrk ds fu;e 54 ds v/khu vk;q lhek esa NqV nh tk ldrh gSA** 5. From reading of the said circular, it also becomes clear that in appropriate cases, the age limit can be condoned only in terms of Rule 54 of Bihar Service Code. Rule 54 of the Bihar Service Code reads as follows:- “54. Except as otherwise expressly 3 provided in rules regulating the methods of recruitment to a particular service or post, a person whose age exceeds twenty- five years and in the case of a person belonging to the scheduled castes and backward tribes whose age exceeds 28 years may not be admitted into pensionable service of Government. The State Government however, may relax this rule in special cases.” 6. Thus from the simultaneous reading of the circular of the Personnel Administrative Reforms Department dated 12.7.1977 and Rule 54 of the Bihar Service Code, it will be clear that in appropriate case, only the maximum age as prescribed for entry in the Government service is condonable. 7. Here the case is just converse. The petitioner was aged about 11 years and 10 months on the date of death of his father and he could not become major even in the period of next two years, which was then the prescribed period of limitation for filing of application on compassionate ground. The petitioner in fact became major only after 4.5.1986 and, therefore, the appointment of the petitioner was not permissible as he 4 remained minor either at the time of death of his father or within the period of limitation. This aspect of the matter has been settled by a Division Bench of this Court in the case of Anil Kumar Singh Vs. State of Bihar & Ors. and other analogous cases reported in 1993(1)PLJR 414. 8. Once this Court would find that the petitioner was not eligible for appointment on compassionate ground, it would also not find any error in the impugned order, which very clearly mentions the fact that the petitioner had filed an application on 20th January, 2006 for condonation of his age for appointment on compassionate ground and to that extent, it would be relevant to quote the relevant portion of the impugned order:- ^^funs'kkuqlkj mi;qZDr fo"k;d vkids vH;kosnu fnukad 20- 1-2006 ds izlax esa dguk gS fd ekuuh; iVuk mPp U;k;ky; ds [kaMihB ds vkns'k ds vuqikyu esa fuxZr i=kad 2822] fnukad 27-4- 95 ds vkyksd esa vuqdEik fu;qfDr esa ,dijrk j[ks tkus ds fy, le; lhek dks {kkUr djuk laHko ugha gSA vr% 26 o"kZ iqjkus bl ekeys esa iqufoZpkj Hkh ughas fd;k tk ldrk gSA** 9. The refusal of exercise of discretion by the appointing authority/State Government to look into the 26 years old matter was perfectly justified, inasmuch as the claim of compassionate appointment is not way of 5 reservation that whenever a dependant of Government servant would like to stake claim, the same will have to be considered. The whole purpose of such compassionate appointment, being only to provide immediate relief to the family of the deceased employee, the very fact that the petitioner came out with such an application after 26 years of his death of his father and that too for seeking condonation of the minimum age limit, for his appointment on compassionate ground would by itself be demonstrative of the fact that the crisis of the deceased employee had been over. 10. Reference in this connection may be made to he judgment of the Apex Court in the case of State of State of Manipur Vs. Md. Rajaodin reported in 2003(7)SCC 511, wherein, it has been held that long delay of seventeen years may be a valid basis for not making compassionate appointment. 11. The plea of discrimination raised by the petitioner has to be also rejected, inasmuch as, this Court has come to the conclusion that neither the policy of compassionate appointment envisages 6 condonation of minimum age limit nor the minor can be allowed to be appointed on compassionate ground. Thus, merely because the Personnel and Administrative Reforms Department in the case of Kailash Chandra Mandal had committed such a mistake, that would not give a right to the petitioner for perpetuating the said illegality. Reference in this connection may be made to the judgment of the Apex Court in the case of Chandigarh Administration Vs. Jagjit Singh reported in 1995(1)SCC 745 wherein it was held as follows:- “8. --- Generally speaking, the mere fact that the respondent Authority 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 7 unwarranted order cannot be made the basis 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 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 a basis for 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 such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interest 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 8 favour of the other person is found to be a lawful and justified one it can be followed and a 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 (sic court) nor is his case. In our considered opinion, such a 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 a particular order has been passed or a 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. Each case must be decided on its own 9 merits, factual and legal, in accordance with relevant legal principles.” 12. Yet again in the case of Jaipur Development Authoirty Vs. Daulat Mal Jain reported in 1997(1)SCC 35, the Apex Court had held as follows:- “The illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalized. In other words, judicial process cannot be abused to perpetuate the illegalities. Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the same benefit. The rational relationship and legal back-up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some persons derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead, nor can the court countenance that benefit had from infraction of law and must be allowed to be retained. One illegality cannot be compounded by permitting similar illegal or illegitimate or ultra vires acts.” 10 13. The plea of discrimination vis-à-vis perpetuating illegality was also explained by the Apex Court in the case of Union of India Vs. J.V. Subhaiah reported in 1996(2)SCC 258 wherein it has been held as follows:- “21. The principle of equality enshrined under Article 14 of the Constitution, as contended for the respondents, does not apply since we have already held that the order of CAT, Madras Bench is clearly unsustainable in law and illegal which can never form basis to hold that the other employees are invidiously discriminated offending Article 14. The employees covered by the order of the Madras Bench may be dealt with by the Railway Administration appropriately but that could not form foundation to plead discrimination violating Article 14 of the Constitution.” 14. This aspect of the matter was also gone into by the Apex Court in the case of Gurusharan Singh Vs. NDMC reported in 1996(2)SCC 459 wherein it was observed by the Apex Court that:- “9. ...There appears to be some confusion in respect of the scope of Article 14 of the Constitution 11 which guarantees equality before law to all citizens. This guarantee of equality before law is positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State ... so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on 12 equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.” 15. As a matter of fact, such plea of discrimination resulting into perpetuating the illegality was not countenanced even in the judgment of the Apex Court in the case of Faridabad CT. Scan Centre Vs. D.G. Health Services reported in 1997(7)SCC 752 wherein it was held that:- “Article 14 cannot be invoked in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other person and that, therefore, there will be discrimination against others if correct orders are passed against them. The benefit of the exemption notification, in the present case, cannot, therefore, be extended to the petitioner on the ground that such benefit has been wrongly extended to others.” 16. The above principles were extended by the Apex Court also in the context of judgment of the court in the case of State of 13 Bihar Vs. Kameshwar Prasad Singh reported in 2000(9)SCC 94 wherein the Apex Court had held as under:- “The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits.” 17. The same plea alike in the present case was rejected by the Apex Court in the case of State of Haryana Vs. Ram Kumar Mann reported in 1997(3)SCC 321 wherein the Apex Court had ruled that the High Court was not right in issuing a mandamus to the State to allow the petitioner to withdraw this resignation merely because in another case such a course was adopted. The following observation of the Apex Court in that context being quite instructive are extracted hereinbelow:- 14 “3. ...The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them i.e. benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously „No‟. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right.” 15 18. In the case of Union of India Vs. International Trading Co. reported in 2003(5)SCC 437, the Apex Court had reiterated that Article 14 does not comprehend negative equality and had observed as follows:- “13. What remains now to be considered, is the effect of permission granted to the thirty-two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty-two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because 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 of India (in short „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 16 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 respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality.” 19. Yet again in the case of Directorate of Film Festival Vs. Gaurav Ashwin Jain reported in 2007(4)SCC 737, the Apex Court had observed as follows:- ”22. When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevant. But where in law, a writ petitioner has not established a 17 right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law.” 20. The whole aspect in fact has been also summarized in the case of State of Bihar Vs. Upendra Narayan Singh & Ors. reported in 2009(5)SCC 65, wherein, law in this respect has been laid down in the following words:- “67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order.” 21. Thus, in the light of the factual scenario and the law laid down by the Apex Court as noted above, this Court will have no hesitation in rejecting the plea of 18 discrimination raised by the petitioner, inasmuch as, this Court is not expected to perpetuate the illegality committed by the authority in allowing the condonation of minimum age in the matter of compassionate appointment. 22. As with regard to the cases of Kailash Chandra Mandal, this Court would find that the Personnel and Administrative Reforms Department had committed an error in directing for condonation of his minimum age for appointment in Government service. Such decision taken by the Personnel and Administrative Reforms Department, being in teeth of the Government policy and frustrating the very object of compassionate appointment and thus not at all a healthy precedent cannot be followed by this Court which would only amount to perpetuating an obvious illegality. 23. This Court would also not find any error in the decision of District Compassionate Appointment Committee in referring the case of the petitioner to the Personnel and Administrative Reforms Department, when the Committee had found that 19 the similar decision was taken in the case of Kailash Chandra Mandal but, then, the impugned order passed by the authority, having clear sanction of law, such rejection of the case of the petitioner by not following the precedent of a wrongly decided earlier case by the authority, at least, cannot be interfered with by this Court in exercise of its discretionary and extraordinary power under Article 226 of the Constitution of India. 24. That being so, this application is wholly misconceived and is accordingly dismissed. 25. There would be however no order as to costs. Patna High Court, Dated 18th April, 2011 Rsh/N.A.F.R. (Mihir Kumar Jha, J.)