1. In both these writ petitions, claim of petitioner for absorption is involved and, therefore, both have been heard together and are being decided by this common judgement.
2. Heard Sri S.C. Srivastava, learned counsel for petitioner, learned Standing Counsel for respondents and perused the record.
3. Petitioner is claiming absorption pursuant to service rendered by him in broken spells during 1994 to 1997 in State Finance Commission. It is stated that some other similarly situated persons have already been absorbed and, therefore, petitioner is also entitled for the same treatment. However, Despite repeated query, learned counsel for petitioner could not show any provisions under which petitioner can claim absorption as a matter of right.
4. It is not disputed that the petitioner was never appointed or engaged after the advertisement of vacancies, complying with the provisions of Article 16 of the Constitution of India, i.e., by giving equal opportunity for public employment to all eligible persons. The petitioner also could not place before the Court any statutory provision whereunder he can claim absorption. Similar question was considered in Imtiaz Ahmad Vs. Regional Deputy Director of Census Operation and others, 2007(3) ADJ 138 and referring to various Government Orders dealing in para 7 it was held as under:
"I have heard learned counsel for the petitioner and perused the record. It is not disputed that in certain broken spells as and when census operations were undertaken by the Government of India, the petitioner was engaged in the census department from time to time. The aforesaid appointment was purely temporary and therefore after completion of the work or due to reduction in the establishment of census department, he was terminated or discontinued whereagainst no grievance was raised by the petitioner at any point of time. His claim is now confined to regular appointment under the State Government considering his status as a "retrenched employee". For the purpose of the present case, even if the petitioner is treated to be a retrenched employee, learned counsel for the petitioner failed to point out any statutory provision or executive order having force of law entitling the petitioner for regular appointment in a class-III or class-IV post under the State Government. The government order dated 22.4.1987 placed on record as Annexure-1 to the rejoinder affidavit shows that the Census Directorate, Government of India communicated to all the Head of Departments, District Magistrates and other employment officers in the State of U.P. that the employees who have worked in the Census Department for about three and half years in 1981 census operations and some of them have crossed maximum age required for employment in the Government service and, therefore, they were allowed relaxation of three years in the age vide Government Order no. 41/2/1967-Karmik-2 dated 13.2.1985 extended upto 12.2.1988, and therefore the said persons may be considered in the service of the State Government extending the said relaxation in age. The aforesaid order, therefore, only provides relaxation in maximum age but nowhere shows that the process of recruitment applicable to class-III and class-IV posts in the state of U.P. shall not be followed for appointment of the said retrenched employees of the census department. Moreover, a bare reading of the aforesaid government order shows that it is applicable to such employees who continuously worked for three and half years pursuant to 1981 census and were retrenched on 30.6.1984. On the contrary, the petitioner was engaged for short periods in 1981 and 1982 only, but there is no continuous service of three and half years as contemplated in the aforesaid government order. Hence, in no circumstance the said government order help the petitioner in any manner. In the state of U.P., recruitment to class-III posts prior to 1989 was being governed by the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 which were substituted by another set of rules on 16.3.1985, i.e., U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985which continued to hold field until substituted in their entirety by U.P. Procedure for Direct Recruitment for Group "C" Posts (Outside the Purview of The U.P. Public Service Commission) Rules 2001. In all the aforesaid Rules, there is no provision for appointment of a retrenched employee without undergoing the process of recruitment. Only certain concessions in the matter of age and educational qualifications etc. have been provided but otherwise a retrenched employee has to participate in the process of recruitment with other eligible candidates as and when the recruitment process is initiated. In the matter of selection and assessment of merit under 2001 Rules, certain weightage is provided but there is no provision for regularization of such employees to the exclusion of regular process of recruitment. In view of the statutory rules, no relief can be granted to the petitioner contrary thereto."
5. A similar view has been taken by a Division Bench of this Court (of which I was also a Member) in Sayed Mohammad Mahfooz Vs. State of U.P. and others 2007(3) ADJ 46.
6. Besides above, I may also place on record that in certain cases some persons who were engaged in election office as Junior Clerks for some short span from time to time were directed to be regularised in some of the judgements of Hon'ble Single Judges and one of such judgment is in Writ Petition No. 52586 of 1999, Dinesh Kumar Shukla Vs. State of U.P. and others. The aforesaid judgement as well as others taking similar view were assailed in intra-Court appeals before this Court and all those appeals were allowed, setting aside the judgements of Hon'ble Single Judges and the judgment is reported in 2004(4) ESC 2470=2005 ALJ 1006, State of U.P. and others Vs. Sanjay Kumar Pandey and other. The Division Bench held that no regularisation or absorption contrary to rules can be claimed. Taking this view it also followed an earlier Division Bench decision in State of U.P. Vs. Rajendra Prasad, 2004(54) ALR 85. Against the judgment of Division Bench in Sanjay Kumar Pandey, the Special Leave Petition No. 5735 of 2009 has also been dismissed by Apex Court vide judgment dated 22.08.2012.
7. The entire issue can also be looked into in the light of Constitution Bench decision in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 followed in State of West Bengal & others Vs. Banibrata Ghosh & others 2009 (3) SCC 250; Council of Scientific & Industrial Research & others Vs. Ramesh Chandra Agarwal & another 2009 (3) SCC 35; General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi & others 2009 (7) SCC 205; and, State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429.
8. So far as absorption of other persons is concerned, in Union of India & another Vs. Kartick Chandra Mondal & another (2010) 2 SCC 422, the Court has gone to the extent that even if some other persons similarly placed have been absorbed, that cannot be a basis to grant a relief by the Court which is otherwise contrary to statute. In para 25 of judgment, the Court said:
"Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh and Ors. (2009) 5 SCC 65, the relevant portion of which is extracted hereinbelow:
"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 ..."
9. In State of Karnataka & others Vs. Gadilingappa & others (2010) 2 SCC 728, the Court reiterated that it is well settled principal of law that even if a mistake is committed in an earlier case, the same cannot be allowed to be perpetuated.
10. Learned counsel for petitioner failed to show that absorption of others was consistent with the scheme of statutory provisions and, therefore, was made validly. It is well settled that if a wrong has been committed by the respondents in respect to some other persons, that will not provide a cause of action to claim parity on the ground of equal treatment since the equality in law under Article 14 is applicable for claiming parity in respect to legal and authorized acts. Two wrongs will not make one right. The Apex Court in the case of State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 5565; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 has held that Article 14 has no application in such cases.
11. Thus in the absence of any statutory provision and also in view of the admitted factual position that the petitioner's initial recruitment was not in accordance with the constitutional scheme enshrined under Article 16 of the Constitution, the relief sought by petitioner cannot be granted.
12. Both the writ petitions lack merit and are dismissed accordingly.
13. Interim order, if any, stands vacated.
Dt. 20.08.2014 PS