Hon'ble Arun Tandon, J.
Hon'ble A.P. Sahi, J.
This reference arises out of a doubt expressed by a Division Bench about the correctness of the judgements noted therein on the proposition relating to addition of services as a Teacher in a Government School in Madhya Pradesh towards the services of a Lecturer in an aided Degree College in the State of U.P. for computing pension and other post retiral benefits. The decisions, including those mentioned in the referring order, that are subject matter of resolution through an authoritative pronouncement, are:-
(I)Writ Petition No. 1614 of 2000, Dr. Ajita Bhattacharya Vs. State of U.P. decided on 18.1.2001.
(II)Writ Petition No. 17417 of 2000, Dr. Jay Prakash Singh Vs. State of U.P. and others decided on 30.4.2001.
(III)Writ Petition No. 17418 of 2000, Dr. Pradeep Kumar Vs. State of U.P. and others decided on 30.4.2001.
(IV)Dr. (Mrs.) Kavita Srivastava Vs. Principal Secretary, Higher Education, Uttar Pradesh Government, Lucknow, reported in 2003 (1) ESC Pg. 643.
(V)Writ petition No. 35605 of 2004, Hari Om Agrawal Vs. State of U.P. and others, decided on 31.8.2004.
(VI)Writ Petition No. 45957 of 2006, Harish Kumar Sharma Vs. Director of Education and others, decided on 24.8.2006.
The controversy appears to have arisen in the background that the petitioner Dr. A.P. Paliwal initially served as an Upper Grade Teacher in a Government Higher Secondary School, Hoshangabad, State of Madhya Pradesh from 1.7.1963 onwards. He came to be appointed as a lecturer on 1st September, 1973 in Dharam Samaj Post Graduate College Aligarh affiliated to the Agra University in the State of Uttar Pradesh and attained his age of superannuation working as such on 24.1.1998. The petitioner claimed that his services between 1.7.1963 to 31.8.1973 as a Teacher in the Government Higher Secondary School in the State of Madhya Pradesh should be added for the purpose of his length of services while computing his pension and other post retiral benefits. The petition as framed, prays for issuance of a writ of certiorari for quashing the order dated 10th January, 2005 passed by the Finance Controller Higher Education Directorate intimating the Principal of the Institution that the petitioner's pensionary benefits have been calculated on the basis of his services rendered within the State of U.P. and in the absence of any Government Order to the contrary or even otherwise, the services rendered by the petitioner outside the State of U.P. in Madhya Pradesh cannot be added for such computation. The allegations in the writ petition recite the instances of the decisions of this Court to contend that the claim of the petitioner has been discriminated and much stress has been laid on the judgments of Dr. (Mrs.) Kavita Srivastava (supra), the decision in the case of Hari Om Agrawal (supra), and the decision of the Apex Court as relied upon in these two decisions namely Shardendu Bhushan Vs. Nagpur University, Nagpur and others reported in 1987 (supplement) SCC Pg. 53. Reliance is also placed on the Government Orders dated 29.8.1990, 30.6.1992, 19.2.1996, 5.2.2003 and the Government Orders dated 23.7.1973, 13.6.1979, 10.12.1985, 14.10.1999 and 4.1.2001.
The Division Bench after having noted the decisions cited at the bar and certain Government Orders framed two questions for being answered by a Larger Bench vide order dated 5.10.2007. Accordingly, the Bench was constituted to answer the aforesaid questions. The referring order is reported in 2008 (3) ESC 1813 and the questions framed are as follows:
(1)As to whether the judgement in the case of Shardendu Bhushan (supra) lays down any proposition of law, qua the length of service rendered in a different State to be added for the purpose of computation of pension in respect of Teacher who was subsequently appointed in a degree college affiliated to the University covered by the Act, 1973 and has retired as such.
(2)Whether in absence of any statutory provision/Government Order permitting any such addition of length of service rendered in a different State to be computed for the purpose of pension qua the person who has retired as teacher from an affiliated Degree College of a State University a direction can be issued under Article 226 of the Constitution of India for such addition of length of service rendered outside the State for pension.
Sri J.P. Singh for the petitioner advanced his submissions by contending that there is no law prohibiting the calculation by way of addition of services rendered in a different State. He submits that the petitioner retired as a Teacher of a Government aided privately managed post graduate college which is affiliated to the Agra University and the terms and conditions of appointment of teachers of affiliated colleges are regulated by the U.P. State Universities Act 1973, the first statutes framed thereunder and the ordinances of the Agra University and the Government Orders issued in this regard from time to time.
He further submits that apart from the decisions which have been relied upon and noted hereinabove, the Government Order dated 30th June, 1992, the Government Order dated 19th February 1996, and the Government Orders issued in the case of Sri Amar Pal Singh dated 29.8.1990 and in the case of Dr. Shanker Sahai Srivastava dated 5th February 2003, clearly make out a case reflecting discrimination being practised by the State Government which militates irrationally against the petitioner. He submits that if such similar benefits have been extended in specific matters of computation of length of service for award of pension, then it is not open to the State Government to say that they were isolated instances and cannot be treated as precedents. He submits that in view of the provisions of Section 33 of the State Universities Act 1973 read with word "Government" as defined in Section 3(23) of General Clauses Act 1897, the respondent State is bound to add the services of the petitioner rendered in the State of Madhya Pradesh for calculating his qualifying years of service in order to compute the pensionary benefits to which the petitioner is entitled. He submits that the State Government cannot adopt a pick and choose policy and award the said benefit to one and discriminate the petitioner on the other hand.
Sri M.C. Chaturvedi learned Chief Standing Counsel submits that the Government orders dated 30th June, 1992 and 19th February 1996 nowhere extend any such benefit as a general proposition and the cases cited at the bar in relation to some specific instances namely the Government Order dated 29.8.1990 in the case of Amar Pal Singh, the Government Order dated 19th February 1996 in the case of Dr. Jagdish Prasad Gaur and the case of Dr. Shanker Sahai Srivastava and the Government Order dated 5.2.2003 are all instances which do not give rise to any right or claim founded on the equality clause contained in Article 14 of the Constitution of India. He submits that the decision in the case of Shardendu Bhushan (supra) the Apex Court was nowhere concerned with the addition and computation of services for the purpose of pension and placing reliance thereon in the subsequent decisions rendered by this Court relied upon by the petitioner do not lay down the correct law and hence deserve to be over ruled. He submits that without taking notice of the relevant provisions of the State Universities Act and discussing the Government Orders in relation to award of pensionary benefits the judgments have been rendered against the existing Government Orders and the relevant provisions relating to award of pension. Sri Chaturvedi has invited the attention of the Court to the Government Orders specifically making a provision for computation of pension with a clear intention not to include any other services except that which is provided for in the Government Order dated 24.12.1983.
It is contended that the other Government Orders relied on by the learned counsel for the petitioner dated 23rd July 1973, 13.6.1979, 10.12.1985, 14.10.1999 and 4.1.2001 are absolutely irrelevant and alien to the present controversy and not in relation to the computation of services rendered outside the State as presently involved. It is pointed out that the decision in the case of R.L. Marwaha Vs. Union of India 1997 (4) SCC Pg. 31 was in relation to the counting of services by the Central Government in a service rendered outside the Central Government in an autonomous body and therefore the said decision also does not lay down any general proposition of law as contended on behalf of the petitioner.
Concluding his submissions learned Chief Standing Counsel contends that the individual case of Dr. Jagdish Prasad Gaur and any such similar case as relied upon by the petitioner is not a precedent nor is it law. He submits that if the Government in its exercise of executive power has granted a stray benefit the same cannot be treated to be a rule of general proposition in order to extend similar benefits to all such teachers throughout the State of U.P. It is urged that the absence of a Government Order clearly indicates that such services as claimed by the petitioner cannot be counted and any example cited by the petitioner is of no avail keeping in view the legal principle that no mandamus can issue to either create a law or act against law unless Article 14 can be successfully invoked. He submits that the petitioner has miserably failed to carve out any case of arbitrariness or discrimination, hence the questions as referred before this Court deserve to be answered straightway in the negative.
Learned counsels have concluded their summations by providing compilations of the relevant judgments and Government Orders together with their written submissions.
To answer the aforesaid questions, the Statutory provision in relation thereto deserves to be quoted at the outset. Section 33 of the U.P. State Universities Act 1973 is gainfully reproduced here under:
"Sec. 33. Pensions, Provident Fund, etc. - The University and every affiliated or associated college shall constitute, for the benefit of its officers, teachers and other employees, in such manner and subject to such conditions [ as may be specified by general or special order by the State Government] such pension, insurance or provident fund, as it may deem fit including a fund from which such teachers or their heirs, as the case may be, shall be paid pension or gratuity in the event of their incurring disability, wound or death in connection with the discharge of their duties as Superintendent of a Centre or invigilator as defined in Uttar Pradesh Universities (Provisions regarding Conduct of Examinations) Act, 1965."
The U.P. State Universities Act is a statute framed by legislature in order to regulate the affairs of all established Universities and Colleges affiliated thereto. It is a State Act which operates within the State of U.P. It cannot and does not regulate the affairs of any college or service conditions of teachers outside the State of U.P. The word Government occurring in Section 33 hereinabove refers to the State Government of Uttar Pradesh and not the Central Government vis-a-vis the benefits arising out of Section 33 of the Act.
Once the statute is clear and unambiguous, recourse cannot be had to the General Clauses Act 1897 to make the meaning of the word "Government" inclusive so as to widen the meaning of Section 33 and give an extended meaning to the benefits arising under the said provision. The purpose of Section 33 is to extend benefits which the State Government decides through a Government Order.
There is no Government Order which may extend such a benefit generally. This Court in the exercise of jurisdiction under Article 226 of the Constitution of India even otherwise cannot issue a mandamus to legislate. The power to issue a Government Order to the State is conceded but where fiscal implications are involved the power has to be located specifically and in the absence thereof the court cannot invent a rule to supplant the provisions.
In view of this we propose to answer the second question first. The services of the petitioner rendered in the State of Madhya Pradesh was under an altogether alien employer with which there is no connection of the employer of the petitioner in the State of U.P. There is no agreement between the State of U.P. and the State of Madhya Pradesh, at least brought to our notice, that may demonstrate that both the States have agreed for any such computation of services for the award of pecuniary benefits of pension which are deferred wages. The qualifying years of service for the purpose of computation of pension in relation to the teachers of a degree college affiliated to a University are governed by the Government Order dated 24.12.1983. The aforesaid Government Order is in consonance with Section 33 of the Act quoted herein above.
There is hardly any ambiguity either in the statutory provision or in the Government Order to spell out the conferment of any such benefit of services rendered outside the State of U.P. The petitioner is employed in a Degree College affiliated to the Agra University and his service conditions are governed by the statutes and the ordinances framed by the University in this regard. Learned counsel for the petitioner has been unable to point out any statute or ordinance which may come to the aid of the petitioner. Thus there is a total lack of authority of law for the extension of such a benefit.
A direction under Article 226 of the Constitution of India can only be issued provided the State Government is obliged under any law for the time being in force to perform such a duty.
Coming to the second limb of the submissions in relation to the second question itself, to our mind the refusal of the State Government to extend any such benefit cannot be said to be arbitrary. A benefit of pension and other post retiral benefits entail a pecuniary liability on the State. The State is the best judge in such matters of policy provided the policy is founded on an intelligible differentia with a rational nexus to the object sought to be achieved. The decision of the State Government not to provide any such computation of services as presently involved therefore cannot be said to be arbitrary or irrational nor any such material has been placed before us so as to arrive at such a conclusion. Independent of the judgments that have been relied on at the bar and some specific instances in relation to three teachers as noted above there is nothing on record which may impel this Court to answer the second question in the affirmative.
Coming to the proposition of discrimination on the strength of the judgments and the specific instances relied upon by the petitioner the first decision that has to be analysed and which is the foundation of the subsequent decisions is the case of Shardendu Bhushan (supra).
The Supreme Court was considering the criteria in relation to the placement in senior scale of a lecturer on the basis of qualifications prescribed therein which includes the experience of University teaching upto degree classes for a period of five years. The judgment of the High Court was set aside holding that it fell into an error in assuming that the length of service in relation to the issue involved meant services within the University itself. The Supreme Court held that the experience which was required as a qualification for award of senior scale would also include the experience of service of the appellant therein rendered in the Calcutta University. The appellant was a lecturer in a college affiliated to the Nagpur University who had staked his claim for adding his teaching experience at Calcutta for such qualification.
The Supreme Court interpreted the criteria that the word University would include the teaching experience rendered by the candidate in any University. The said case was therefore nowhere related to the computation of services rendered in a State outside the State in which the said claim was made for pension. The qualification of teaching experience is an altogether different concept from having rendered service under a different employer in order to add such services for qualifying for pension. Apart from this, in the absence of any such arrangement between two alien employers there is no general proposition of law laid down in the case of Shardendu Bhushan (supra) so as to construe the law to the extent as suggested on behalf of the petitioner. The aforesaid decision therefore in our opinion cannot be made the basis for enunciating a principal of law to extend the benefit of computation of alien services for pension.
The confusion in the mind of the petitioner has its genesis in a complete misunderstanding of the ratio in the case of Dr. Ajita Bhattacharya. The obscurity of the said confusion got perplexed and confounded upon the said decision being construed to be a decision in relation to computation of service for award of pensionary benefits. The decision in the case of Dr. Ajita Bhattacharya relates to the award of senior scale/selection grade to a lecturer as is evident from the entire judgment which is quoted bellow:
BY THE COURT Heard.
The facts of this case are covered by the decision of Supreme Court in Shardendu Bhushan Vs. Nagpur University 1987 (Supp) SCC 53.
Following the said decision, this writ petition is allowed and the respondents are directed to fix salary of the petitioners as Senior Scale Lecturer/Selection grade Lecturer by counting her service from 9.10.87 and to give her all consequential benefits.
Neither the aforesaid decision in the case of Shardendu Bhushan (supra) nor the decision in the case of Dr. Ajita Bhattacharya do even remotely apply to the proposition of law presently involved. The same is the position in the case of Dr. Jay Prakash Singh (supra) which was also for the award of senior selection grade where the Court directed the services of the petitioner therein rendered in the State of Kerala to be counted for the said purpose. Similar is the situation in the case of Dr. Pradeep Kumar (supra).
One of the other controversial decisions relied upon by the learned counsel for the petitioner is that of Dr. (Mrs.) Kavita Srivastava (supra). The petitioner therein was working as a lecturer in Mathematics in a degree college at Allahabad affiliated to the Kanpur University and she was claiming addition of her services rendered in Awadhesh Pratap Singh University Rewa in the State of Madhya Pradesh. The decision does not indicate that the claim of addition of service was in relation to pensionary benefits or for some other purpose. However, the said decision refers to two Government Orders dated 30.6.1992 and 19.2.1996.
The Government Order dated 30th June, 1992 is in relation to award of senior scale/selection grade to such lecturers who were claiming benefits of career advancement scheme. It is in that context that the said Government Order was issued with a subsequent clarification that no additional benefit of pension would be available apart from the existing pension scheme in relation to such teachers.
The Government Order dated 19th February 1996 is in relation to an individual case of Dr. Jagdish Prasad Gaur whose previous services in colleges outside the State and in a different college within the State were sought to be counted in view of the judgment of the High Court dated 12th July, 1995 for the purpose of award of selection pay scale. The said Government Order also did not relate to the counting of services for the purpose of qualifying years of service to be added to compute pensionary benefits. Thus the decision in the case of Dr. (Mrs.) Kavita Srivastava (supra) also does not lay down any such law nor does the Government Order in relation to Dr. Gaur indicate any such general principle being applied for the purpose of award of pension.
The decision which the petitioner claims to be in support of his claim directly is the decision in the case of Hari Om Agrawal (supra). The Court therein relied on the decision of Dr. (Mrs.) Kavita Srivastava (supra) and further indicated that the petitioner shall be entitled to all consequential retiral benefits and pension ignoring the condition mentioned in Paragraph 2(6) of the Government Order dated 24.12.1983. We have perused the Government Order dated 24.12.1983 and we can only observe that there cannot be a mandamus to ignore law or act against law without holding the provision to be ultra-vires. No reason has been given in the aforesaid judgment as to why the condition mentioned in Paragraph 2(6) of the Government Order dated 24.12.1983 deserves to be ignored.
In our considered opinion the aforesaid direction given is not in conformity with law and therefore cannot be a Precedent or an authority to contend that the petitioner be also given any benefit against the provisions of law. The exercise of jurisdiction under Article 226 is to uphold the law or to strike down a law which is unconstitutional or otherwise ultra vires. In the absence of any such contingency the observation to ignore law, with all due respect to the Division Bench judgment, is defiance of the Constitution and we therefore disapprove of any such observation made therein.
Even otherwise the judgment in the case of Dr. (Mrs.) Kavita Srivastava as explained above could not have been pressed into service for computing the services rendered outside the State of U.P. for finalization of pension and other consequential retiral benefits. The aforesaid directions have been issued unsupported by any reasons and is too wide a proposition to be accepted in law. We have therefore no hesitation to hold that the judgment in the case of Hari Om Agrawal does not lay down any law and if it does then the same has been done incorrectly.
The next decision which has been also referred to as the latest decision in the referring order namely Harish Kumar Sharma (supra) relies on the decisions discussed hereinabove. The conclusion drawn was that the authority while passing the order refusing to count the services rendered outside the State could not have done so as an exception to the ratio of the law of the Supreme Court in the case of Shardendu Bhushan (supra). We have tried our best but we have been unable to find out any ratio therein to support the proposition of award of computation of services rendered outside the State for awarding pensionary benefits as claimed herein. We are unable to persuade ourselves to accept any such proposition for the reasons discussed hereinabove and therefore we hold that the judgment in the case of Harish Kumar Sharma is equally inapplicable and unavailable for accepting the proposition as advanced in the present case on behalf of the petitioner. The said judgment nowhere discusses either Section 33 of the U.P. State Universities Act or the Government Orders that have been placed before us for consideration. Accordingly the claim of the petitioner cannot advance any further on the strength of the said decision.
The judgment in the case of R.L. Marwaha (supra), the Supreme Court while discussing an office memorandum dated 29.8.1984 issued by the Central Government came to the conclusion that such services would be counted and a pro-rata pension will be determined in accordance with the said office memorandum. The said decision does not lay down anything as a matter of law or any such general proposition to compute services rendered with an alien employer automatically and for all intents and purposes. The said decision also therefore rests on an altogether different foundation.
The conspectus of the decisions hereinabove does not lead to any such conclusion so as to enable this Court to issue a mandamus in the exercise of such a jurisdiction.
Coming to the main thrust of the submissions on behalf of the petitioner in relation to three individual cases one can gainfully referred to the Government Order dated 29th August, 1990 in the case of one Amar Pal Singh. There a retired teacher of a degree college claimed counting of his services rendered as a teacher of an Intermediate College under the grant-in-aid of the Government. The said case appears to have been an isolated individual case picked up by the State Government with a further direction that it shall apply provided the contribution of the employer along with the entire interest is deposited to be adjusted for the purpose of such calculation. The State Government does not disclose any reason in the Government Order as to why His Excellency The Governor was pleased to pass a selective order for counting the services rendered within the State of U.P. in an Intermediate level college.
Even assuming for the sake of argument that it was in relation to a teacher of a degree college as presently involved the said Government Order proceeds to count the services rendered within the State of U.P. in a recognized Intermediate College governed by the provisions of the U.P. Intermediate Education Act 1921 and the regulations framed thereunder. It is not a case in relation to counting of alien services outside the State of U.P. The said Government Order therefore does not exactly cater to the doctrine of equality as is sought to be invoked by the petitioner herein. The issue raised which we are called upon to answer is services rendered outside the State of U.P. for counting services to compute the qualifying years of service for pension. The said Government Order is therefore clearly distinguishable and cannot form the basis of the proposition of law so as to answer the question in favour of the petitioner.
The next Government Order is dated 5th February 2003 in the case of Dr. Shanker Sahai Srivastava where the High Court issued a direction on 7.12.1999 and the State Government counted the services rendered by the petitioner therein in the Sampurnanand Jail Officers Training Institute Lucknow towards his services as a teacher of Mahatma Gandhi Kashi Vidyapith, Varanasi. Apart from this the Government Order adds the services rendered by him in the Sagar University, Madhya Pradesh as an Assistant Professor for pensionary benefits. A special leave petition against the order of the High Court was preferred which was dismissed by the Apex Court on 27.9.2000 on the ground of delay.
It is true that the same is a case where services rendered outside the State have also been counted, that too in relation to a lecturer of a University within the State of U.P. and governed by the provisions of the statutes framed under the U.P. State Universities Act 1973. What is remarkable about the Government Order is quoted below:
mijksDrkuqlkj Mk0 JhokLro ds isa'ku dh iquxZ.kuk djds ,fj;j dk Hkqxrku lqfuf'pr fd;k tk,A lkekU;r;k izns'k ds ckgj dh lsokvksa dks lsokfuo`fRrd ykHkksa gsrq tksM~s tkus dk dksbZ fu;[email protected]/kku ugha gSA vr,o iz'uxr ekeys dks n`"VkUr ugha ekuk tk,xkA g0 vLi"V pUnzek izlkn fo'ks"k lfpoA On a plain reading of the aforesaid paragraph, to our mind it is axiomatic that the State Government was itself conscious of the non-existence of any such provision to count the services from outside the State for pensionary benefits and there is a clear recital to that effect. This also stands corroborated by the last sentence that it shall not be treated to be a precedent in any manner.
In view of the very nature of the Government Order this Court would not enunciate a law so as to extend the equality clause, in the absence of any legal provision. A stray or an isolated individual act of the State Government which itself is a self descriptive document to that effect cannot be accepted as a basis to establish discrimination.
This issue in relation to Dr. Shanker Sahai Srivastava was relied on by one Laxmi Shankar Gupta who was also a teacher of Mahatma Gandhi Kashi Vidyapith, Varanasi claiming the calculation of his services in Tinsukia Degree College, Assam for drawing pension. This court allowed the said claim on the parity of Dr. Shankar Sahai Srivastava (supra) and the State of U.P. preferred a special leave petition before the Apex Court assailing the order of the High Court. The judgment was reversed by the Apex Court on 13th July, 2006 in the case of State of U.P. and others Vs. Laxmi Shanker Gupta, reported in 2006 (9) SCC Pg. 159 holding that the judgment of the High Court did not contain any reasons and the dismissal of the special leave petition in the case of Dr. Shankar Sahai Srivastava was not on merits but on the ground of delay. Similarly in the case one Professior H.P. Tripathi of the Allahabad University, the same course was adopted by the Apex Court.
Another isolated incident of a similar nature was brought to our notice in the case of Professor Ram Singh of the Allahabad University whose services in the Delhi University and the Government of India were directed to be calculated vide Government Order dated 18.11.2000 with a rider that the said case shall not be treated as a precedent.
The only inescapable conclusion is that these stray and isolated acts do not lay any foundation to invoke the principles of Article 14 of the Constitution of India.
However, it will be appropriate to remind the State Government of the law of equality when it chooses to selectively extend such benefits that are likely to raise a challenge on the ground of Article 14. The Supreme Court has held that if the State Government proceeds to extend a benefit, then it cannot be permitted to turn around and say that it had taken a wrong stand. The State Government cannot be permitted to wriggle out through such excuses against the mandate of Article 14 of the Constitution of India. The State cannot take a stand which is unreasonable, irrational and yet approved by it to extend some isolated benefit. To that extent the only conclusion that we can draw is that the Government Order dated 5th February 2003 is not in conformity with Article 14. Nonetheless the said direction is even otherwise isolated as it appears to have been done on some direction of the High Court dated 7.12.1999. We are therefore unable to approve of the action of the State Government as lawful as executed under the Government Order dated 5th February 2003.
The State, where it is authorized to distribute largesse, has a greater responsibility to prevent wasteful expenditure. It enjoys the authority on account of the faith reposed by the public at large which is no licence to distribute alms out of State exchequer. This restraint is necessary to conform to the rule of law and at the same time respect the faith reposed by the public. The fiscal power of the State has to be exercised not for the interest of one particular individual, that too by acknowledging it to be against law, as in the case of Dr. Shanker Sahai Srivastava.
There is nothing like a sweet will of the State. The expectation under the Rule of Law is responsible behaviour underlined by rationality. There is no exceptional circumstance reflected in the G.O. Dated 5.2.1003 that may allow us to rationally conclude that it was imperative and reasonable for the State to have done so. Our task is easier as the G.O. itself pats a caveat that no rule supports the grant, yet it was done not to be treated as a precedent. The compulsion under which it was done is not known nor decipherable from a perusal thereof and in such a situation it would be a grave risk to treat such a self-negating action of the State to make it a foundation for invoking Act 14 of the Constitution of India. It would pollute the law instead of nurturing it.
The claim, according to our humble understanding of the law, cannot be founded even on the strength of a legitimate expectation, inasmuch as such an expectation has to be founded on some right. In the matter under consideration we are unable to locate any lawful claim much less a legal right or even the violation of a fundamental right to invoke the said doctrine.
In the case of Vishundas Hundumal Vs. State of M.P., reported in (1981) 2 SCC Pg. 410, the Supreme Court examined a situation where the action of the State was conceded as to be an error, omission, oversight, inadvertence and unconscious act and nothing deliberate. There Article 14 was invoked and addressing itself on the facts so found, the apex court held the action of the State to be discriminatory.
In the case of Dr. Shanker Sahai Srivastava relied on by the petitioner, the State has deliberately executed a grant which according to its own admission is not sanctioned by law. This feature which is peculiar by itself, inasmuch as the grant is founded on an admitted wrong stand in law, distinguishes it from the facts and ratio of Vishundas's case (supra).
Such individual benefits reminds us of feudal grants of the imperial age where such awards were not infrequent. The rule of Law in a democracy where equality is the spinal support cannot be subjected to any dent through the tool of interpretation by the courts so as to violate the principle of Article 14 enshrined in the Constitution.
Similarly the Judiciary has to exercise restraint while examining questions arising out of allegations of arbitrariness and discrimination. A law which is capable of being bent can be subjected to interpretation to iron out the creases, but it cannot be broken under the garb of suspected arbitrariness. This principle has been extended even to the highest degree of extraordinary plenary powers like Act 142 of the Constitution of India. Reference may be had to the decisions in the case of Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and others, reported 2004 (2) SCC Pg. 130 Para 36 and in the case of Laxmidas Morarji (dead) by LRS. Vs. Behrose Darab Madan, reported in 2009 (10) SCC Pg. 425 Para 24 to 25. In sum and substance there cannot be a mandamus against law.
In view of the conclusions drawn hereinabove our answer to both the questions is in the negative to the following effect.
1.The judgment of the Apex Court in the case of Shardendu Bhushan (supra) does not in any way lay down the law for adding the length of services of a teacher retiring in the State of U.P. appointed in a degree college affiliated to a University covered by the U.P. State Universities Act 1973 rendered in a different State for computation of pension.
2.A direction under Article 226 of the Constitution of India for addition of the length of service rendered by such a teacher outside the State of U.P. for computation of pension cannot be issued in the absence of any statutory provision or Government Order upon the retirement of such a teacher.
Let the matter be now placed before the appropriate bench to proceed to dispose of the case.
Dt. 8th September 2010 Sahu