Hon'ble Ashwani Kumar Mishra,J.
Heard Sri Anil Kumar Sharma, learned counsel for the petitioner and learned Standing Counsel for the respondents.
The petitioner was working as Seenchpal in the department of the respondent no.5 Executive Engineer, Etawah Division, Lower Ganga Canal, Etawah. It appears that for the purpose of promotion from Seenchpal to Seenchpal Paryavekshak a select list dated 02.06.1984 was prepared. It is the contention of the petitioner that on the basis of select list the petitioner along with other Seenchpal have been promoted and allowed to work as Seenchpal Paryavekshak. However, the said select list has been cancelled vide order dated 21.02.1986. The petitioner challenged this order of cancellation dated 21.02.1986 before the State Public Service Tribunal, Lucknow by a claim petition No.229/F/IV/87. In paragraph 25 of the claim petition the petitioner had contended that the petitioner was promoted but after the cancellation he was reverted while his junior were allowed to be promoted.
The Tribunal vide order dated 30.01.1996 rejected the claim petition. The Tribunal held that the select list was not prepared in accordance to the rule and, therefore, has been rightly cancelled. The Tribunal observed that the rule provide that the Selection Committee should have been constituted in accordance to the rule, before the preparation of the select list and since the select list was not prepared in accordance to the rule the cancellation order was justified. The Tribunal further observed that in paragraph 25 of the claim petition it has been stated, that the petitioner has been reverted and his junior has been promoted, however, from the counter affidavit/written statement it is clear that the petitioner was also promoted but has been reverted, therefore, it cannot be said that he has been superseded in promotion. The Tribunal further observed that this question cannot be decided because reversal order has not been challenged by the petitioner.
The petitioner challenged the order of the Tribunal in the Writ Petition No.15705 of 1996 which has been disposed of vide order dated 31.08.2001. It appears that during the course of argument it was contended by the learned counsel for the petitioner that he has never been reverted and the facts, to the contrary, have wrongly been noticed by the Tribunal in the impugned order. While disposing of the writ petition this Court observed as follows:-
"I have considered the submissions made by learned counsel for the parties. It is well settled in law that in the event wrong facts are noticed by any court or authority in its order, the person aggrieved may approach that very court or authority for ventilation of his grievances. The revisional or appeellate court or higher authority has got no right to interfere in such matter. In the present case if the petitioner felt that the facts were wrongly noticed by the respondent no.1 his remedy was before the Tribunal itself and not under Article 226 of the Constitution of India. It is, however, observed that the petitioner can still approach the Tribunal for ventilation of his grievances. If any application is filed by the petitioner before respondent no.1 within three weeks from today, the same shall be disposed of finally preferably within a period of two months from the date of a certified copy of this order is produced before him, after following the procedure prescribed under the law. With these observations and directions, this petition stands finally disposed of."
In pursuance thereof after 46 days from the date of the order petitioner filed a review application before the Tribunal, the Tribunal vide order dated 22.02.2007 rejected the review application. The Tribunal observed that there was no mistake in the judgment in taking notice of the fact pleaded in the petition and no sufficient ground of the review has been made out; the select list has not been prepared in accordance to the rules after constitution of the Committee, the same was rightly cancelled; Writ Court has directed to file review application within three weeks while it was filed after 46 days and without application for condonation of delay.
Learned counsel for the petitioner submitted that on the basis of the select list, along with petitioner, number of other Seenchpals have been promoted on the post of Seenchpal Paryavekshak. When the select list was cancelled the petitioner has been sent back to the post of Seenchpal while others were allowed to continue as Seenchpal Paryavekshak. According to the petitioner, in fact, he has not been reverted but as a consequence of the cancellation of the select list he has been asked to work on the post of Seenchpal and, therefore, the finding recorded by the Tribunal in the order that the petitioner has been reverted back to the post of Seenchpal and the order of the reversal has not been challenged is factually incorrect. And, therefore, the review application ought to have been allowed.
We do not find substance in the argument of the learned counsel for the petitioner. It is not disputed that the petitioner has been promoted or has been asked to work on the post of Seenchpal Paryavekshak in view of the select list dated 02.06.1984. The said select list has been cancelled vide order dated 21.02.1986. After cancellation of the select list, the petitioner has been asked to work on the post of Seenchpal. Whether this situation may amount to reversal or not, is not very relevant. After the cancellation of the select list, the promotion made in pursuance thereof by implication also stood cancelled and petitioner was bound to go back to his original post namely Seenchpal. The order cancelling the select list has been upheld by the Tribunal on the ground that the select list was prepared without there being formation of the Selection Committee against the rules. This view of the Tribunal has not been interfered by the Writ Court. The contention of the petitioner that the juniors to the petitioner have been allowed to continue on the post of Seenchpal Paryavekshak and the petitioner has only been asked to work as Seenchpal, therefore, the petitioner is also entitled for the same treatment as his junior has been given, is without any substance and cannot be accepted.
If after the cancellation of select list and promotion made in pursuance thereof, any person is being allowed illegally to continue on the promoted post, the petitioner cannot claim parity on the basis of such illegal act. It is settled principle of law that illegality cannot be perpetuated and the petitioner cannot be allowed to continue on the post of Seenchpal Paryavekshak without there being legal promotion in accordance to the rule.
In State of Karnataka and others v. Gadilingappa and others, reported in (2010) 2 SCC 728, the Apex Court held that it is well-settled principle of law that even if a mistake is committed in an earlier case, the same cannot be allowed to be perpetuated.
In the case of Prem Kumar Upadhyaya and another v. State of U.P. and others, reported in 2014 (1) ADJ 536, this Court held as follows:
"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 v. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another v. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey v. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. etc. v. State of Haryana and others, AIR 2005 SC 5565; and Kastha Niwarak G.S.S. Maryadit, Indore v. President, Indore Development Authority, AIR 2006 SC 1142; has held that Article 14 has no application in such cases."
In view of the aforesaid discussions, we do not find any merit in the writ petition. The writ petition is dismissed, accordingly. We direct the respondent no. 5 to look into the matter and take necessary step to ensure that no persons be allowed to continue on promoted post without there being legal promotion order in their favour. Learned Standing Counsel is directed to serve the copy of this order to respondent no. 5 for necessary action.
Order Date :- 3.2.2014 OP