Case: State Of Bihar Vs. Upendra Narayan Singh

order for extending similar benefits to others. Before a claim based on 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." In Faridabad CT. Scan Centre v. D.G. Health Services (supra), a three-Judge Bench overruled the earlier decision of a two Judge Bench in Mediwell Hospital & Health Care (P) Ltd. v. Union of India and others [(1997) 1 SCC 759] and held: "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 persons 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." The above principles were extended to the judgment of the Court in State of Bihar v. Kameshwar Prasad Singh (supra) wherein this Court 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." [emphasis added]In State of Haryana v. Ram Kumar Mann (supra), this Court ruled that the High Court was not right in issuing a mandamus to the State to allow the petitioner to withdraw his resignation merely because in another case such a course as adopted. Some of the observations made in that case, which are quite instructive, are extracted below: "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." In Union of India v. International Trading Co. (supra), the Court reiterated that Article 14 does not comprehend negative equality and observed: "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 todeal 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 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." In Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others (supra), a two-Judge Bench, after making a reference to the judgments in Jagjit Singhs case and Gursharan Singhs case, observed: "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 relevance. But where in law, a writ petitioner has not established a 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."

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]31. In our opinion, there is no merit in the submission of the learned senior counsel. If the initial appointments of the respondents are found to be illegal per se, the direction given by the High Court for their reinstatement with consequential benefits cannot be approved by relying upon the so-called regularization of their services. Had the respondents been appointed by the competent authority after issuing an advertisement or sending requisition to the employment exchange so as to enable the latter to sponsor the names of eligible persons then they would have certainly produced the relevant documents before the High Court or at least before this Court. However, the fact of the matter is that none of the documents which could give a semblance of legitimacy to the appointments of the respondents was produced before the High Court and none has been produced before this Court. The report of enquiry held against Dr. Darogi Razak, the then Regional Director, Gaya (a copy of the report has been placed before this Court in the form of additional document) bears ample testimony of manipulations made by the officer in making appointment on Class III and Class IV posts. So much so, with a view to remove every trace of the illegality committed by him, Dr. Darogi Razak ensured disappearance of all the papers relating to appointment from his office. A reading of the enquiry report shows that in all the following five charges were leveled against Dr. DarogiNo.1: You while working as Regional Director, Animal Husbandry, Gaya had made irregular appointments of 61 persons on 23 Class-3 posts and 61 Class-4 posts. As such, the State Funds were misused/wasted on salary, allowances, etc. of the personnel appointed irregularly.Charge No.2: You while working as Regional Director, Animal Husbandry, Gaya, made appointments on Sate Level posts (such as Milk Recorder (Dugadh Abhilekhak), Poultry Attendant (Kukkoot Sahayak), Statistics Teller (Sankhiyaki Ganak), Progress Assistant (Pragati Sahayak, etc.) whereas Regional Directors had no power to make such appointments. Director, Animal Husbandy is only competent to make appointments to such posts.Charge No.3: You adopted the practice of appointment of four or less than four persons at one go for which it is not necessary to give advertisement in the newspapers, but as per Roster, requisition to call for names from Employment Exchange is mandatory. However, you have not complied with this rule.Charge No.4: You also appointed persons in excess of sanctioned strength.Charge No.5: The relevant records regarding appointments are not available in the office. In this connection, this fact has come to notice that these records have been removed/misplaced at yourOfficer who conducted the enquiry considered the documents produced by the departmental representative and the charged officer, arguments advanced by them, analyzed the entire evidence and concluded that charge No. 1 is partly proved, charges No. 2 and 3 are fully proved, charge No. 4 is not proved and charge No. 5 is partly proved. The analysis of charges No. 1 to 3 and charge No. 5 made by the Inquiry Officer is worth noticing. The same reads asNo. 1 to 3:- In the analyses of three charges under consideration, firstly it was seen that how much proof has been made available by the department regarding appointments made by the charged officer. As has been shown in detail under heading `evidence hereinabove, number of appointment letters issued by the charged officers comes near around 54 and it may vary by two three less or more. Practical problems were faced in working out exact number of appointment letters because many appointment letters were not readable to such extent that no clear conclusion could be arrived at as to whether this is second copy of some other appointment letter or it contain any other order.These appointment letters were casually perused. Some important facts emerged from such perusal. The details of appointment letters issued with No.M.Camp were found as under: -S. No.Letter No.DateName of person appointedCategory1.14/M. Camp, Nabada9.5.89Raj Kumar RajakClass-42.12/M. Camp, Nabada9.5.89Ashok Kumar RajakClass-43.15/M. Camp, Nabada9.5.89Illeg.Class-44.21/M. Camp, Nabada3.5.90Sunil PrasadClass-45.16/M. Camp, Nabada19.3.90Kailash RajakClass-46.95/Camp, Jahanabad26.5.90Onkar Kumar SinghClass-47.266/Camp, Aurangabad17.2.90Arun Kumar SinghClass-4The following appointment letters have been issued with Issue No."Con.", which is normally used for confidential correspondence, and use of the same in normal course in the office is not desired in the interest of work. Using such issue No. for appointment letter has practically no justification.123451.3/Con.30.4.91Raj Kishore GuptaClass-42.5/Con.10.6.91Madhuri RamClass-43.26/Con.27.10.91Shyam Pyare SinghClass-44.25/Con.27.10.91Upender Kumar Singh Prasannjeet Kumar SinghClass-45.22/Con.27.10.91Sanjay Kumar SinghClass-46.16/Con.25.10.91Satrughan Sah Sahender Prasad SinghClass-47.15/Con.24.10.91Ramji Ravi Das Anil Kumar SinghClass-48.6/Con.2.7.91Raj Kishore SinghClass-49.8/Con.19.12.90Ram Pyare SinghClass-410.7/Con.10.12.90Ram Bachan Singh Pawan KumarClass-411.11/Con.1.2.89Ganesh RajakClass-312.13/Con.2.2.89Ajay Prakash Diwakar—Following appointment letters were found which have been issued putting both i.e. "Con." AndSadar, Gaya21.8.90Raghvendra Narain Vijay KumarClass-4 Class-42.3/Con./Camp- Sadar, Gaya3.1.90Pandey Amar KumarClass-43.6/Con./Camp- Sadar, Gaya3.8.90Mithlesh Kumar Suman Ashok Kumar AbhayClass-4 Class-44.8/Con./Camp- Sadar, Gaya2.9.90Mahender Kumar Yadav Pankaj KumarClass-4 Class-4In the following appointment letters, there does not appear any relation between Issue Nos. and Date, for example, Issue No. like 1,2,3 have been put in ninth and tenth month of the year:-123451.118.9.91Anand Mohan SinghClass-42.218.9.91Gaya PrasadClass-43.322.10.91Sudama SinghClass-4The specific feature of all the above seven appointment letters is that in all these the charged officer has this or that way ordered to one Clerk of Sadar, Gaya named Shri Avadesh Prasad that issue these from the Confidential Issue Register of Sub Divisional Animal Husbandry Officer, Sadar, Gaya. There is strong possibility arises from this that naturally no one was interested to issue such letters otherwise such a senior officer would have not faced such a situation of giving such written order to a clerk only for issue of letters.The importance of above letters is more clear on perusal of some of the remaining letters because as an exception, some letters have also been issued with Nos. as given below:-123451.423Illeg.1. Illeg.Class-32. Illeg.Class-32.9784.7.91Girija YadavClass-33.913Illeg.Jan Vikas Kumar ChaudharyClass-34.161615.11.91Mahender Prasad SinghClass-45.14679.10.91Upender Narain SinghClass-46.14321.10.91Sunil KumarClass-4Bharat Kumar SinghClass-47.22128.6.89Munender Kumar BhartiClass-48.136511.9.91Megh Nath SahClass-4It remains a matter of surprise that when some letters could be shown to have been issued from office in a normal routine manner, then what is the need of issuing other appointment letters in huge numbers by sometime putting "Confidential", sometime putting "Mukhya (Hq.)" and sometime putting "Camp" and sometime by both "Camp" and "Confidential" contradictory and un-matched Nos. No satisfactory reply to this is found anywhere during the course of hearing.In some cases, it also appears to be very unnatural that charged officer was Regional Director and his headquarter was also Gaya but showing office of Animal Husbandry Officer of Sadar Sub. Division, Gaya as "Camp", letters were got issued from there. Any need of getting issued letters using "Camp" is not understandable. When the office of charged officer was itself in Gaya, and when any letter whatsoever was to be got issued, there would have been no difficulty for him to get it issued from his own office itself. Merely for the reason that he is not sitting in Officer chamber and in fact is present in the officer of Sub Divisional Animal Husbandry Officer, justification of issue of letter from camp is difficult to understand.Regarding letters issued from "Camp", this is also another issue for consideration that such letters are normally issued under such circumstances wherein it is necessary to issue the letter immediately. Any such emergent situation could not have been in appointment like matters. There is no reason to think that if charged officer had got the appointment letter issued even after returning to his office, the work would have suffered immensely. Nature of letters is not such that the subject matter could be considered to be fit for issue from "camp".It can also be easily understood with regard to letters issued by putting different Issue Nos. that for some reasons the charged officer had considered it not proper to allow those letters pass through many hands in the office, hence separate Serial No. used for getting those issued. Even on seeing the available Nos. it is clear that no other particular correspondence used to be done by using this "Con." Issue Register from which only these appointment letters have been issued, because Issue Nos. are of very less units/digits. In very few instances/examples, the No. has come in double digit. A question mark arises on Year-wise maintenance of such Register - which is natural.Now this question also arises that had charged officer had taken all the actions as per rules, then why such situation cropped up that unnatural Issue Nos. had to be put on the appointment letters which are generally used for keeping those letters out of the sight of office. Charged Officer even otherwise has been merely giving his statement regarding following procedure of appointment that he had done such and such. During the course of following procedure, many records and correspondence/files are created/originated such as calling for information of vacancies, taking decision on the requirement for appointments, preparing reservation roster and maintenance of the same in the Roster Register, classification of available appointments as per Roster, notifying the vacancies to the employment exchange or newspapers, inviting applications, following procedure for registration of applications, thereafter examination of applications as per qualifications, holding meetings of Selection Committee, issue of minutes and issue of appointment letters after completion of work. All these documents going missing appear to be impossible. By merely saying that he followed procedure does not become clear proof that he had done so. In fact, contrary position appears to be more reliable from the statements given by his successors and officials of his office. There are sufficient grounds to hold that the charged officer has not followed the procedure in appointment.Charge No. (5): - Here position is not such in which any file related to appointment was ever seen by anyone. No one has made such admission in his statement. The appointment letters issued by the charged officer himself do not bear any File No. It is correct for the charged officer to state that it is the duty of the office and concerned clerk to maintain File Record Register etc. If charged officer take shelter of this technical argument, then he shall also be bound to take this responsibility that he should have seen that other files submitted to him with other documents related to appointment bear file No. and that at the time of issuing fair copy of letters, File Nos. are mentioned on the letters issued from that file. Normally, an officer who depends and rely on such defence is also supposed to take much more care and vigil. During the course of analyses under charge No.1 to 3, many such letters have been referred in which some unnatural type of Issue Nos. have been given. There are number of such letters on which Issue No. "Con." has been given. The charged officer cannot naturally put liability on his office for whatever file maintained for issue of such letters. This question is altogether different that why letters were got issued by putting Issue No. "Con." Treating the subject like appointment as confidential.The argument of charged officer in defence also does not clear this fact that why many appointment letters had been issued with Issue Nos."Camp". As charged officer states - Files were maintained and office is responsible for safe "custody" of the same, then it is difficult to understand this fact that how the letters issued with No."Camp" had come in the files maintained by the office. If came, then how office can be responsible for this. "Camp" are also of different types. "Camp" order has been got issued from Gaya itself by sitting from Sadar Sub Divisional Office and for this purpose some clerk has also been given written order. Such papers do not have any concern with maintenance of file. Some "Camp" orders have also been issued from Nabada-Aurangabad and other places also. Which file could be submitted before him at those places on which letter had been issued from Nabada or Aurangabad itself and responsibility of the same was of the office of Regional Director, Gaya - it is also difficult to understand.As such, the explanation of charged officer is totally one sided. The matter is not confined to Issue No. only. When the charged officer in his defence claim of completing all the formalities, then all such actions such as assessing the vacancies, calling names from employment exchange or giving advertisement, making list of candidates, following selection process for the same, holding meeting of committee and preparing minutes and getting it approved are required to be taken. It is also difficult to accept that all such documents had gone missing at the same time. Merely by saying that safe custody of records was the responsibility of the office is neither complete in itself but credibility of this statement also suffers in view of nature of letters issued.Now question arises is that whether charged officer had removed the files/records of appointments made during his tenure or had taken away by him or somehow destroyed these records. All these three possibilities arise only when such records had been maintained. The type of appointment letters shown from which the fourth possibility also arises that no record has at all been maintained anywhere. As such, there is also no need to remove or take away any document. It is merely a possibility for which charged officer would have needed cooperation and participation of other persons to whom employees were being sent after appointment.It is not possible to finally decide from the evidences produced in this departmental inquiry that out of above three or fourth possibilities, which one is correct. One thing is though clear that charged officer had not left any of the papers related to appointment in his office and the manner in which he adopted the working system of appointments, this strong possibility arises that even if documents were maintained, these were not maintained at office level. In such a case, the charged officer shall himself be responsible for non-availability of documents, irrespective of following the method of removing those documents or not maintaining any documents. As such, this charge is held to be proved to thisadded]32. The so-called regularization of the services of the respondents on which heavy reliance was placed by the learned senior counsel appearing on their behalf in the context of averments contained in paragraph 4 of the counter affidavit filed before this Court by Shri Prasannjeet Kumar Singh (respondent no.3 herein) is a proof of nepotism practiced by the officer and deserves to be ignored. For the reasons best known to them, the respondents have not produced copy of the order by which their services were regularised. Perhaps none exists. The statement furnished by counsel for the appellant, which is accompanied by documents marked `A and `B, shows that in less than 7 months of the respondents appointment (except respondent no.1 who is said to have been appointed with effect from 9.10.1991), Dr. Darogi Razak is said to have written confidential memorandum bearing no.20 dated 11.5.1992 (Annexure `A) to District Animal Husbandry Officer, Aurongabad, Gaya that ad hoc appointments made vide Memorandum No.1467 dated 9.10.1991 are being regularized temporarily by the local appointments committee constituted on 11.5.1992. What is most amazing to notice is that the local appointments committee was constituted on 11.5.1992, the committee met on the same day and regularised the ad hoc appointments and on that very day the Regional Director sent confidential letter to his subordinate, i.e., the District Animal Husbandry Officer informing him about the regularization of ad hoc appointments. No rule or policy has been brought to our notice which empowers the appointing authority to regularize ad hoc appointments within a period of less than 7 months. Therefore, we have no hesitation to hold that the exercise undertaken by Dr. Darogi Razak for showing that appointments of the respondents were regularized by the local appointments committee on 11.5.1992 was a farce.33. In view of the above discussion, we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits.34. The issue which remains to be considered isthe Division Bench of the High Court was justified in refusing to examine legality and legitimacy of the initial appointments of the respondents only on the ground that the State had not challenged the dismissal of Letters Patent Appeals filed in othercases. In our view, the approach adopted by the Division Bench was clearly erroneous. 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 – Chandigarh Administration and another v. Jagjit Singh and another [(1995) 1 SCC 745] , Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35] , Union of India [Railway Board] and others v. J.V. Subhaiah and others [(1996) 2 SCC 258] , Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459] , State of Haryana v. Ram Kumar Mann [(1997) 1 SCC 35] , Faridabad CT Scan Centre v. D.G. Health Services and others [(1997) 7 SCC 752] , Style (Dress Land) v. Union Territory, Chandigarh and another [(1999) 7 SCC 89] and State of Bihar and others v. Kameshwar Prasad Singh and another [(2000) 9 SCC 94] , Union of India and another v. International Trading Co. and another [(2003) 5 SCC 437] and Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others [(2007) 4 SCC 737] Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain (supra) this Courtillegal 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 the Court can 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 viresUnion of India [Railway Board] and others v. J.V. Subhaiah and others (supra), a three-Judge Bench held asprinciple 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 the 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 theGursharan Singh v. New Delhi Municipal Committee (supra), this Court declined to invoke Article 14 of the Constitution for giving relief to the appellant andappears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a 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 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 aFaridabad CT. Scan Centre v. D.G. Health Services (supra), a three-Judge Bench overruled the earlier decision of a two Judge Bench in Mediwell Hospital & Health Care (P) Ltd. v. Union of India and others [(1997) 1 SCC 759] and14 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 persons 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 toabove principles were extended to the judgment of the Court in State of Bihar v. Kameshwar Prasad Singh (supra) wherein this Court held asconcept 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 similaradded]In State of Haryana v. Ram Kumar Mann (supra), this Court ruled that the High Court was not right in issuing a mandamus to the State to allow the petitioner to withdraw his resignation merely because in another case such a course as adopted.In Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others (supra), a two-Judge Bench, after making a reference to the judgments in Jagjit Singhs case and Gursharan Singhs case,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 relevance. But where in law, a writ petitioner has not established a 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