# Ashagar Ali v. Administrator Nagar Maha Palika, Kanpur Nagar and others

- **Citation:** (2005) 4 ILRA 1083
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-10
- **Case number:** Civil Misc. Writ Petition No. 1749 of 1995
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashagar-ali-v-administrator-nagar-maha-palika-kanpur-nagar-and-others-40540
- **Pages:** 22

## Headnote

Constitution
of
India, Art.-226Promotion-Petitioner initially appointed
on the post of Beldar-considering the
driving experience-entrested to drive the
Zeep-about
which
Rs.200/-
extra
payment given on monthly basis apart
from usual salary-claimed promotion on
the post of driver on the ground in
similar circumstances other Beldar given
promotion-No statute, Rule, regulation
or G.O. providing promotion to class 4th
employee on the post of Driver-a post of
direct recruitment-held-any illegality on
irregular favour of any individual-can not
be basis to plea the protection of Art. 14nor can be enforced by involving power
under Art. 226 of the Constitution.

Held: Para 19

Enforcement of such claim would be
amount to directing to continue and
perpetuate an illegal procedure or illegal
order for extending similar benefits to
others. Before a claim based on equality
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, in this
process there has been a discrimination.

(B) Constitution of India, Art. 226Regularisation-working for long time on
the post of driver-can not be basis to put
a claim for Regularisation for a class 4th
employee-even on existence of such
regular vacancy-held-in absence of any
statutory provision-any direction amount
to legislation by the Court.

Held: Para 29

Thus in view of settled legal position
discussed herein before it is necessary to
point out that in absence of necessary
foundation in writ petition supported by
material and in absence of rule of
regularisation neither any direction for
regularisation
nor
any
direction
to
designate the petitioner as driver can be
given by this Court only on account of
the existence of vacancies on the post of
Driver.
In
my
considered
opinion,
issuance of such direction would be
amount to legislation by court contrary
existing statutory rules of recruitment
referred herein before.
Case law discussed:
1999 (2) ESC-1378
2000 (2) ESC-785
AIR 2001 SC-706
AIR 1995 SC-705
J.T. 2000 (5) SC-389
(J.T. 1996) 1 SC-641
1996 (2) SCC-459
J.T. 1996 (8) SC 387
1997 SCC (1) 35
J.T. 1997 (3) SC-450
1997 (3) SCC-321
AIR 1991 SC-284
AIR 1994 SC-1808
AIR 1989 SC-1899
AIR 199

## Text

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4 All] Ashagar Ali V. Administrator Nagar Maha Palika, Kanpur Nagar and others
1083
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2005

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 1749 of 1995

Ashagar Ali

...Petitioner
Versus
Administrator,
Nagar
Maha
Palika,
Kanpur Nagar and others ...Respondents

Counsel for the Petitioner:
Sri R.S. Mishra
Sri A.K. Tiwari

Counsel for the Respondents:
Sri Lal Ji Sinha
S.C.

(A)
Constitution
of
India, Art.-226Promotion-Petitioner initially appointed
on the post of Beldar-considering the
driving experience-entrested to drive the
Zeep-about
which
Rs.200/-
extra
payment given on monthly basis apart
from usual salary-claimed promotion on
the post of driver on the ground in
similar circumstances other Beldar given
promotion-No statute, Rule, regulation
or G.O. providing promotion to class 4th
employee on the post of Driver-a post of
direct recruitment-held-any illegality on
irregular favour of any individual-can not
be basis to plea the protection of Art. 14nor can be enforced by involving power
under Art. 226 of the Constitution.

Held: Para 19

Enforcement of such claim would be
amount to directing to continue and
perpetuate an illegal procedure or illegal
order for extending similar benefits to
others. Before a claim based on equality
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, in this
process there has been a discrimination.

(B) Constitution of India, Art. 226Regularisation-working for long time on
the post of driver-can not be basis to put
a claim for Regularisation for a class 4th
employee-even on existence of such
regular vacancy-held-in absence of any
statutory provision-any direction amount
to legislation by the Court.

Held: Para 29

Thus in view of settled legal position
discussed herein before it is necessary to
point out that in absence of necessary
foundation in writ petition supported by
material and in absence of rule of
regularisation neither any direction for
regularisation
nor
any
direction
to
designate the petitioner as driver can be
given by this Court only on account of
the existence of vacancies on the post of
Driver.
In
my
considered
opinion,
issuance of such direction would be
amount to legislation by court contrary
existing statutory rules of recruitment
referred herein before.
Case law discussed:
1999 (2) ESC-1378
2000 (2) ESC-785
AIR 2001 SC-706
AIR 1995 SC-705
J.T. 2000 (5) SC-389
(J.T. 1996) 1 SC-641
1996 (2) SCC-459
J.T. 1996 (8) SC 387
1997 SCC (1) 35
J.T. 1997 (3) SC-450
1997 (3) SCC-321
AIR 1991 SC-284
AIR 1994 SC-1808
AIR 1989 SC-1899
AIR 199

(Delivered by Hon'ble Sabhajeet Yadav, J.)

By this petition, the petitioner has
sought relief of writ of mandamus
directing the respondents to promote the
1084 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
petitioner from the post of Beldar to the
post of Driver, in the Nagar Mahapalika,
Kanpur Nagar and pay his salary for the
post of Driver w.e.f. 14.9.1984.

2. The relief sought in the writ
petition rests on the facts that petitioner
was appointed as Beldar, Class IV
employee in Nagar Mahapalika, Kanpur
Nagar on 3.5.1980 in the pay scale of
Rs.750/- to 940/- and he was confirmed
on the said post in the year 1982. Since he
was experienced vehicle driver having
valid driving licence he was promoted
casually to drive the vehicle i.e. Jeep No.
5592 in the Zone-3 of Nagar Mahapalika,
Kanpur Nagar but no promotion order in
writing was given to the petitioner by the
respondents. On 4.9.1985 an order posting
the petitioner permanently in the Project
department on the post of driver was
passed by the office Director, City
Cleaning, Nagar Mahapalika, Kanpur
Nagar. Thereafter on 21.9.1989 the
Executive
Engineer
Zone-3
sent
a
recommendation for promotion of the
petitioner from the post of Beldar to the
post of driver on the ground that
petitioner was working as driver from
4.9.1985 continuously. It is alleged that
although
in
the
year
1989,
the
recommendation was sent to the Mukhya
Nagar Adhikari and he has accepted the
recommendation
of
promotion
of
petitioner on the post of driver on
9.10.1990 but no formal order of
promotion was passed nor he was paid his
salary for the post of driver despite he is
working as driver under the control of
respondents from 14.9.1984 but he is
being paid salary of Beldar which is less
remuneration against the principle of
equal pay for equal work. On 3.4.1993 the
petitioner sent a representation to the
Project
Officer,
U.D.C.,
Nagar
Mahapalika, Kanpur Nagar with the
prayer for his promotion from the post of
Beldar to the post of driver. On 15.4.1993
the Project Officer sent a recommendation
to the Administrator, Nagar Mahapalika,
Kanpur Nagar for promotion of petitioner
on the post of driver. On 31.5.1994 the
representation of petitioner dated 3.4.1993
was referred to the respondent no.2 by the
Administrator but petitioner has not been
promoted so far. He again submitted
representation
on7.6.1994
to
the
respondent no.1 ventilating his grievances
therein.

3. In para 9 of the writ petition it is
further stated that one Madho Raj who
was appointed as Safai Mazdoor in the
year 1992 has been promoted as driver on
2.6.1994
by
the
respondent
no.
1(Annexure-7 of the writ petition). In para
10 of the writ petition it is stated that the
petitioner is working as driver since
14.9.1984 continuously under the control
of respondents and more than 10 years
have passed but he has neither been
designated as driver nor salary of driver
has been paid to him by the respondents.
The petitioner is still working as driver
and on 1.3.1994 the petitioner has been
deputed to operate Jeep No.U.S.J. 5403 in
Third Zone for recovery of revenue. It is
further stated in para 11 of the writ
petition that according to the service rule
the petitioner is entitled for promotion if
he deserves. The petitioner is holding a
valid licence and he is working as driver
by the order of respondents. He is also
entitled for designation as driver and
entitled for salary of driver in pay scale of
Rs.950/- to 1500/- admissible to the post
of Driver. The action of respondents in
denying the aforesaid benefit of service to
the petitioner is arbitrary and illegal and
not justified under law.
4 All] Ashagar Ali V. Administrator Nagar Maha Palika, Kanpur Nagar and others
1085
4. A detail counter affidavit has been
filed in the writ petition, wherein the
appointment of petitioner as Beldar in pay
scale of Rs.165/- to 215/- on 1.9.1980 in a
temporary capacity has not been disputed.
It is also not disputed that petitioner had
driving licence and he was asked to drive
the Jeep by Chief Engineer. In reply to
para 3 of the writ petition it is stated that
the petitioner was transferred to Project
Department and was directed to drive the
vehicle by Director, City Cleaning. In
para 7 of the counter affidavit it has been
stated that the petitioner was never
promoted
as
driver
in
spite
of
recommendation but he was paid an extra
allowances for driving the vehicle. He
was regularly paid the allowance of
Rs.200/- per month. In para 9 of the
counter affidavit although it appears that
the facts stated in para 7,8 and 9 of the
writ petition were admitted but in para 11
of the counter affidavit in reply to the para
11 of the writ petition it is stated that the
substantive post of petitioner was of
Beldar and in lieu of his services as a
driver he was paid an extra allowances of
Rs.200/- per month. The petitioner having
accepted the extra allowances for driving
the vehicle cannot claim the salary
admissible to the post of driver and for
regularisation of his services as a driver.

5. It appears that the petitioner has
filed a supplementary rejoinder affidavit,
whereby certain more new facts have
been incorporated basically in para 3,5
and 6 of the affidavit as under:

"3. That petitioner has served the
order on 21.3.2003 along with Hon'ble
court order dated 7.3.2003 as well as
numbers
of
juniors
namely
Noor
Mohammad, Sabbir, Balram Sri Mishra,
Akhilesh Singh, Gulab Singh, Ramakant
Tripathi and other have been given cadar
of the driver from the post of Beldar as
well as getting salary of the post of driver,
however
the
petitioner
continuously
discharging the duty of the post of driver
since 1985 with full satisfaction of the
authority. The Photostat copy of receiving
dated 21.3.2003 is being filed here with
and marked as Annexure no.1.

5. That in reply of contents of paragraph
nos. 3 and 4 of the supplementary counter
affidavit as stated partly correct and rest
is denied. It is further submitted that the
post of Beldar and Safai Karmchari are
from the categories of class 4 with the
same pay scale as well as number of
Majadoor and Beldar has been promoted
on the post of driver after considering
experience of driving who have driving
licence.

6. That in reply of contents of paragraph
no. 5 of the supplementary counter
affidavit as stated needs no comment. It is
further submitted that respondents had
adopted pick and chose policy in regard
of promotion for the post of driver as
given promotion Madho Raj, Akhilesh
Singh,
Dooth
Nath,
Gulab
Singh,
RamakantTripathi, NoorMohammad and
Rampal Tiwari got promotion on the post
of driver from the post of Safai
Karmachari and Beldar (Class IV) and all
of them are junior to the petitioner,
however petitioner's case has not been
considered for the promotion of the post
of driver as continuously discharging the
duty for the post of driver since 1985 and
the above stated persons also having no
any qualification of High School."

6. It appears that after exchange of
aforesaid affidavits, this Court vide order
dated
7.3.2003
has
directed
the
1086 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
respondents to furnish certain more
information in details to the court by
filing supplementary counter affidavit in
the writ petition alongwith the Rules,
Regulations of the Nagar Mahapalika
having bearing with the issue as under:

"Heard counsel for the parties.

The petitioner was appointed as a
Beldar IVth Class employee in Nagar
Maha Palika, Kanpur Nagar on 3.5.1980.
The petitioner was experienced vehicle
driver having valid driving licence and he
was promoted casually to operate the
vehicle i.e. Jeep No. 5592 and he was
being paid allowance for driving the
vehicle. On 21.9.1989 the Executive
Engineer sent a recommendation for the
promotion of the petitioner from the post
of Beldar to the post of Driver and as
such the petitioner was performing the
work of driver from 21.9.1989 (Annexure2 to the writ petition). The Project Officer
on the application of the petitioner also
on 15.4.1993 had sent a recommendation
to the Administrator, Nagar Mahapalika,
Kanpur Nagar recommending the case of
the petitioner to the post of Driver. The
copy
of
the
recommendation dated
15.9.1994 is Annexure- 4 to the writ
petition. On 31.5.1994 the representation
of the petitioner dated 3.4.1993, the
Administrator referred the matter for
promotion of the petitioner to the Mukhya
Nagar Adhikari but the petitioner was not
promoted. However, the petitioner again
submitted a representation on 7.6.1994
giving assertion that the petitioner after
working as a driver from more than 10
years and his juniors who were appointed
as a beldar have been promoted as a
driver and subsequently it was mentioned
that one Madho Raj who was appointed
as a Safai Mazdoor in the year 1992 has
been promoted as a driver on 2.6.1994.
The averment of the petitioner that a
junior Beldar/Safai Mazdoor appointed
subsequently in the year 1992 was
transferred to the post of Driver by the
order dated 2.6.1994 has not been denied
in
the
counter
affidavit.
Now
the
respondent has to apprise this court under
what circumstances the similarly situated
persons had been given chance while the
petitioner who is senior to Madha Raj and
working for the last twelve years as a
driver
has
been
deprived
of
his
appointment to the post of driver. How
this discriminatory treatment was adopted
and how the services of the petitioner as a
driver was ignored.
Now
Executive
Officer/Mukhya
Nagar Adhikari, Kanpur Nagar has to file
his personal affidavit and also state that
how many posts of driver are available
and how many persons are working and
the provisions/rules/regulations of the
Nagar Mahapalika has also to be
apprised to this court in addition to the
filing of response by way of affidavit. It is
expected that Mukhya Nagar Adhikari,
Nagar Mahapalika, Kanpur will give
assistance as indicated above.
List this matter on 16th April for
further hearing."

7. It appears that in compliance of
the aforesaid order dated 7.3.2003 passed
by this court two supplementary counter
affidavits have been filed on behalf of the
respondents one sworn by Sri R.N. Ram
working as Nagar Ayukta known as
Mukhya
Nagar
Adhikari,
Nagar
Mahapalika, Kanpur Nagar and another
by Sri Mahatma Prasad working as
Project Officer impleaded as respondent
no.3 in the writ petition, whereby
information sought by the court has been
4 All] Ashagar Ali V. Administrator Nagar Maha Palika, Kanpur Nagar and others
1087
furnished and stand taken by respondents
were also clarified. In para 5 of the
supplementary counter affidavit sworn by
Sri R.N. Ram it is stated that the post of
driver is to be filled up by direct
recruitment and the appointment of
qualified persons who have driving
licence and have worked as a driver for
three years and also have knowledge of
reading and writing Hindi language can
be made after holding selection. A
Government Order with regard to the
mode of recruitment for appointment of
driver is filed as Annexure-1 to the
supplementary counter affidavit. In para 6
of the supplementary counter affidavit a
clarification has been made with regard to
the eligibility and mode of recruitment on
the post of driver. It is also made clear
that Class IV staff who have passed High
School
and
fulfil
the
qualification
prescribed by the State Government are
eligible for promotion in Class -III
category posts i.e. Clerk and typist etc., if
a person is working as Beldar and fulfils
the qualification for any higher post he
can be promoted in Class-III post i.e.
Clerk, typist etc.. Beldar has no channel
of promotion on the post of Driver.
However if the driver is eligible and
qualified for any higher post, he may
apply for selection in open competition,
they have no channel of promotion. In
para 7 of the aforesaid supplementary
counter affidavit it has been further stated
that at present there are about 19
vacancies on the posts of driver. It is open
for the petitioner to apply for the post and
if he fulfils the eligibility conditions for
the post of driver, he may apply along
with other staff. The petitioner has never
been
appointed
as
a
driver.
His
substantive post is of Beldar.

8. In another supplementary counter
affidavit sworn by Sri Mahatma Prasad
the stand taken on behalf of respondents
has been stated in paragraphs 5,7,8 and 9
of supplementary counter affidavit as
under:

"5. That in reply to para 3 of the
affidavit, it is submitted that Noor Mohd.,
Sabbir, Balrm, Shri Mishra, Akhilesh
Singh, Gulab Singh, Ramakant Tripathi
and no person junior to the petitioner in
his cadre as Beldar/Safai Mazdoor has
been appointed as driver by promotion.
The persons mentioned were working as
driver and were appointed as driver on
temporary basis and have been duly
selected as driver by Selection Committee.
The petitioner can appear in the selection
for the post of driver, if he fulfills the
eligibility conditions of the driver and
selected by the Selection Committee.
There are still 19 vacancies for the post of
driver and the petitioner can appear for
the selection. It is denied that the
petitioner has been working as driver
since 1985. Since the petitioner knows
driving
his
services
were
utilized
occasionally and was paid the allowance
of driver. The scale of pay of the driver is
higher than the Class IV Staff.

7. That the facts stated in para 5 of the
affidavit are not correct as alleged and
are denied. The post of driver is filled by
persons who fulfil the essential eligibility
conditions. The post of driver is a directly
recruited post and appointment is made of
qualified persons who have driving
licence and has worked as a driver for 3
years and also has knowledge of reading
and writing Hindi Language. The post of
Beldar and Safai Mazdoor are from
different Class IV category and the
promotion to the next higher Class III
1088 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
post is made from the eligible persons
according to the availability of vacancy.
That although the post of driver is a class
IV post but the scale of pay is higher.
8. That the facts as stated in para 6 of the
affidavit are not admitted and are denied.
As has already been stated the persons
mentioned by the petitioner are not junior
to the petitioner. They appeared in the
selection for the post of driver and were
appointed as driver. The petitioner has
not been selected as driver by the
Selection Committee. The petitioner knew
driving as such occasionally he was asked
to drive the vehicle and was paid
allowance for the period he performed the
duty of driver.
9. That in reply to para 7 of the affidavit,
it is submitted that no person junior to the
petitioner has been promoted as driver.
The post of driver is a directly recruited
post and the persons mentioned by the
petitioner were not promoted but applied
for the selection and were selected by the
Selection Committee."

9. On the basis of pleadings of the
parties and materials available on record
the learned counsel for the petitioner has
submitted that in view of clear cut
averment made in paragraph 9 of the writ
petition that one Sri Madho Raj who was
appointed as Safai Mazdoor in the year
1992 has been promoted as driver on
2.6.1994 by respondent no. 1 and in the
counter affidavit the aforesaid allegation
has neither been denied nor the aforesaid
fact has been disputed by the respondents.
In para 10 of the writ petition it has been
averred that the petitioner is working as
driver since 14.9.1984 continuously. Now
more than 20 years have passed the
petitioner has neither been designated as
driver nor the salary of the driver has been
paid to him by the respondents. Therefore,
he is also entitled to be promoted as driver
and to be paid his salary on the aforesaid
post even on principle of equal pay for
equal work. In support of his submissions
learned counsel for the petitioner has
placed
reliance
upon
decisions
of
Madhav
Prasad
Dubey
Vs.
The
Executive
Engineer,
Public Works
Department, Allahabad and others,
1999(2) E.S.C. 1378(All.), R.K. Dubey
Vs. State of U.P. and others, 2000 (2)
E.S.C. 785(All.) and a decision of Apex
Court rendered in Gujarat Agricultural
University Vs. Rathod Labhu Bechar
and others, AIR 2001 Supreme Court
706. The submissions made by learned
counsel for the petitioner at the strength
of the aforesaid rulings appears to be
misconceived and misplaced for the
reasons given herein after.

10. Heard Sri A. K. Tiwari, learned
counsel for the petitioner and Sri Lal Ji
Sinha for the respondents.

11. Having heard learned counsel
for the parties and on perusal of records
the first question arises for consideration
before this court is that in given facts and
circumstances of the case as to whether
the petitioner while working on the post
of Beldar is entitled to be promoted on the
post of Driver and further since the work
of driver is being taken from him as to
whether he is entitled for salary of driver
or not? And as to whether on that count
he is entitled to be treated and designated
as driver or not? In this connection before
adverting the arguments advanced by
learned counsel for the parties it is
necessary to point out that recruitment on
any post or service is normally governed
by statute i.e. enactment or statutory rules
or in absence thereof by Administrative
instructions or circulars or office orders
4 All] Ashagar Ali V. Administrator Nagar Maha Palika, Kanpur Nagar and others
1089
issued from time to time, whatever names
it may be called. Thus first of all it is
necessary to examine as to whether there
exist
any
statute
or
Government
order/circular regulating the recruitment
of Driver. In this regard it is necessary to
point out that it is not in dispute that
Governor of State of U.P. has issued an
order notified in Gazette dated 1.3.1963 in
exercise of power conferred under the
provisions of Section106 and Section109
of U.P. Nagar Mahapalika Adhiniyam,
1959 under the name and style of The
Uttar
Pradesh
Nagar
Mahapalika
Services (Designations, Scales of Pay,
qualifications, Conveyance Allowance
and Method of Recruitment) Order
1963. This Government order is of
statutory nature, having sanction and
backing of the aforesaid provisions of
Adhiniyam. Hindi version of relevant
extract of it along with schedule has been
filed along with supplementary counter
affidavit sworn by Sri R.N. Ram. Clause 3
of Government order provides that the
servants of Mahapalika shall be grouped
into services mentioned in the schedule.
Clause-7 provides that qualifications for
recruitment to various posts in the
Mahapalika shall be such as are given in
the schedule. Clause-8 provides that no
person shall be appointed to any of the
posts created under section 106 unless he
fulfils the qualifications and experience
mentioned in the schedule against the post
provided that exemption may be granted
in special cases by the Appointing
Authority with certain conditions need not
to be referred in detail. In the relevant part
of the schedule attached with the
aforesaid Govt. Order, against the post of
Lory, Truck or Tractor Driver it is
provided that, besides having driving
lincence there must be three years driving
experience and person must read and
write in Hindi language. In the column of
mode of recruitment it is mentioned as
direct
recruitment.
Thus
from
the
aforesaid provisions of Govt. Order it is
clear that the post of driver is liable to be
filled up through direct recruitment
method from amongst the eligible and
qualified persons. The same cannot be
filled up by promotion of Beldar. Thus in
my considered opinion the assertion made
by respondents in this regard in the
supplementary counter affidavit finds
supports from the provisions of statutory
Govt. Order referred herein before and no
exception can be drawn in this regard for
taking different and contrary view in the
matter.

12. Now further question arises for
consideration as to whether petitioner
while working as Beldar can claim
promotion on the post of driver on
account of alleged promotion of one
Madho Raj on the post of driver on
2.6.1994 who was appointed as Safai
Mazdoor/Beldar
in
the
year
1992
subsequent
to
the
appointment
of
petitioner and was much junior to him on
the ground of alleged discrimination? In
order to examine this question it is
necessary to examine factual back ground
of the case first. The petitioner has come
forward with the case in writ petition that
certain persons named in affidavit, were
junior to him appointed on the post of
either Beldar or Safai Mazdoor which is
Class IV post, but they were promoted on
the post of driver. In reply thereto in the
supplementary counter affidavits filed on
behalf of the respondents a clear cut stand
has been taken stating therein that Noor
Mohd.,
Sabbir,
Balram,
Sri
Misra,
Akhilesh Singh, Gulab Singh, Ramakant
Tripathi and no junior person to the
petitioner in his cadre as Beldar/Safai
1090 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Mazdoor has been given appointment as
driver
by
promotion.
The
persons
aforementioned were appointed as driver
on temporary basis and have been duly
selected as driver by selection committee.
There are still 19 vacancies against the
post of driver and the petitioner can
appear for the selection. It is denied that
the petitioner has been working as driver
since 1985. Since the petitioner knows
driving
his
services
were
utilized
occasionally and was paid the allowances
for driver. The scale of pay of driver is
higher than class IV staff. It is further
stated that the post of driver is filled by
persons who fulfil the essential eligibility
conditions. It is directly recruited post and
appointment is made of qualified persons
who have driving licence and have 3
years experience of driver and also have
knowledge of reading and writing of
Hindi Language. The post of Beldar and
Safai Mazdoor are different class IV
category post and promotion to the next
higher class III post is made from the
eligible persons according to availability
of vacancy. Although the post of driver is
also class IV post but it carries higher pay
scale. It is also stated in para 8 of the
supplementary counter affidavit that the
persons mentioned by the petitioner are
not junior to him with further statement of
fact that they appeared in selection for the
post of driver and they were selected and
appointed on that post. The petitioner has
not been selected as driver by selection
committee. Since the petitioner knew
driving as such occasionally he was asked
to drive the vehicle and was paid
allowances for the period he performed
the duty of driver. In para 9 of the said
supplementary counter affidavit it is
stated that no person junior to the
petitioner has been promoted as driver.
The post of driver is directly recruited
post and persons mentioned by the
petitioner were not promoted but applied
for selection and were selected by
selection committee.

13. Thus in view of these clear and
emphatic statement of facts made on
behalf
of
the
respondents
in
the
supplementary counter affidavit filed by
them in compliance of earlier order
passed by this Court on 7.3.2003 referred
herein before, clarifying the ambiguity in
the statements as earlier made by the
parties in their affidavits, in absence of
any pleadings and proof of malafide
against the respondents authorities, I have
no reason to disbelieve aforesaid facts
pleaded in the aforesaid supplementary
counter affidavit and take different and
contrary view in the matter and believe
the disputed statement of facts pleaded
by the petitioner . It has also never been
the case of the petitioner that he has ever
been selected and appointed on the post of
driver on regular basis in substantive
capacity rather it was throughout his case
that he was appointed on the post of
Beldar but he has been permitted to work
as driver since 1984 and continuously
working as such on casual basis. He was
recommended for promotion on the post
of driver by the authorities but no order
promoting him was passed. Although he
is working on the post of driver but the
salary of aforesaid post is not being paid
to him. Thus in back drop of these facts
and situation the claim of the petitioner
for promotion on the post of driver being
contrary to the statutory provisions of law
referred herein before cannot be accepted.

14. Now viewing the matter from
different angles it is necessary to point out
that assuming for the sake of arguments if
the allegation of the petitioner that
4 All] Ashagar Ali V. Administrator Nagar Maha Palika, Kanpur Nagar and others
1091
persons juniors to him who were
appointed as Beldar and Safai Mazdoors
were promoted on the post of driver and
one Madho Raj who was appointed as
Safai Mazdoor in the year 1992 was
promoted on the post of driver on
2.6.1994 was admitted by the respondents
as correct, a question arises as to whether
that admission of the respondents in
original counter affidavit would alone be
sufficient ground for grant of relief to the
petitioner
on
account
of
alleged
discrimination? In this connection it is
necessary
to
point
out
that
after
clarification sought by this Court vide
order
dated
7.3.2003,
when
detail
supplementary counter affidavits were
filed clarifying the whole situation in that
eventuality the admission made in para 9
of the original counter affidavit in reply to
the averments made in para 9 of the writ
petition has lost its efficacy and can be of
no legal consequence in support of the
claim of the petitioner but even if such
admission still survives and is taken to be
into account the question would arises
that what would be its effect with regard
to the claim of the petitioner ?

15. In this connection it is necessary
to point out that from the perusal of
Annexure 7 of the writ petition which is
order dated 2.6.1994 passed by Up Nagar
Adhikari, Karmik, Kanpur Nagar Nigam,
in compliance of order of Administrator
Nagar Nigam dated 22.2.1994 whereby
Sri Madho Raj Safai Mazdoor was
transferred against clear vacancy of driver
in
the
workshop
department
with
stipulation that his cadre would be of
driver. Except the aforesaid order there is
no other material evidence on record to
show that how this order of transfer was
made posting Safai Mazdoor on the post
of driver and as to whether it was made
after his due selection on the post of
driver and pursuant order dated 22.2.1994
was passed by administrator or it was
passed promoting him on the aforesaid
post by way of transfer but from the
perusal of Annexure 7 of the writ petition
there is nothing to indicate that Sri
Madhoraj was promoted from the post of
Safai Mazdoor to the post of driver as
alleged by the petitioner in para 9 of the
writ petition. The onus of proof was upon
the petitioner to establish his allegation by
placing actual order of Administrator
dated 22.2.1994 on record, but he has
failed to place the aforesaid order of
Administrator before the Court. The order
dated 2.6.1994 does not recite the word
promotion
although,
the
distinction
between the expressions transfer, posting,
appointment and promotion is well known
in service law jurisprudence. Thus the
averments made by respondents in two
supplementary counter affidavits appears
to be correct and persons named by the
petitioner have been appointed on the post
of driver after due selection by selection
committee and since the petitioner did not
face selection for the post of driver nor he
claims so, as such cannot blame for such
alleged discriminatory treatment met to
him against aforementioned persons and
Sri Madhoraj. Therefore, it can be safely
held that the petitioner has failed to
substantiate his aforesaid ground of
alleged discrimination.

16. However, even assuming the fact
in absence of denial, in the counter
affidavit that Sri Madhoraj who was
admittedly junior to the petitioner and was
promoted on the post of driver contrary to
the rules as the provisions of the aforesaid
Govt.Order
which
governs
the
recruitment of driver does not permits
such promotion from the post of Beldar or
1092 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Safai Mazdoor to the post of driver as
correct, nevertheless there can be no
hesitation to hold that such alleged
promotion of Madhoraj is contrary to the
statutory rules referred herein before.
Further question arises for consideration
as to whether the petitioner can also seek
his promotion contrary to the aforesaid
statutory rules? In this connection it is
necessary to point out that similar
question has received consideration of
Hon'ble Apex Court at several occasions.
It would be useful to refer some decisions
in this regard, herein after.

17. In Chandigarh Administration
and another Vs. Jagjit Singh and
another, AIR 1995 S.C. 705 in para 8 of
the decision Hon'ble Apex Court held as
under:

"8. . . . . . . . . . . . Generally speaking,
the mere fact that the respondentauthority 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 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 extra-ordinary
and discretionary power of the High
Court cannot be exercised for such a
purpose. Merely because the respondentauthority
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 interests 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 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 petitioner's case is similar to the other
person's 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. It is 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
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
4 All] Ashagar Ali V. Administrator Nagar Maha Palika, Kanpur Nagar and others
1093
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 merits, factual and legal, in
accordance with relevant legal principles.
The orders and actions of the authorities
cannot be equated to the judgments of the
Supreme Court and High Courts nor can
they be elevated to the level of the
precedents, as understood in the judicial
world. (What is the position in the case of
orders passed by authorities in exercise of
their quasi-judicial power, we express no
opinion. That can be dealt with when a
proper case arises)."

18. The similar view has also been
taken by Hon'ble Apex Court in State of
Bihar and others Vs. Kameshwar
Prasad Singh and another, J.T. 2000 (5)
S.C. 389. In paragraph 30 of the decision
Hon'ble Apex Court has considered the
several earlier decisions rendered by
Supreme Court and has held that any
illegality committed by department in
favour of any person cannot be made
ground and basis to claim parity under
Article 14 of the Constitution of India,
and no writ, order or direction can be
issued by the High Court under Article
226 of the Constitution of India unless the
person approaches the court substantiates
his claim on independent legal basis. For
ready reference Para 30 of the decision is
reproduced as under:

"30. The concept of equality as
envisaged under Article 14 of the
Constitution is a positive concept which
cannot be enforced in negative manner.
When any authority is shown to have
committed any illegality or irregularity in
favour of any individual or group of
individuals other cannot claim the same
illegality or irregularity on ground of
denial thereof to them. Similarly wrong
judgment passed in favour of one
individual does not entitle others to claim
similar benefits. In this regard this Court
in
Gursharan
Singh
&
Ors.
Vs.
N.D.M.C. & others (JT 1996 (1) SCC
647 =1996 (2) SCC 459) held that citizens
have assumed wrong notions regarding
the scope of Article 14 of the Constitution
which guarantees equality before law to
all citizens. Benefits extended to some
persons in an irregular or illegal manner
cannot be claimed by a citizen on the plea
of equality as enshrined in Article 14 of
the Constitution by way of writ petition
filed in the High Court. The Court
observed:
"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 a discrimination."
Again
in
Secretary,
Jaipur
Development
Authority,
Jaipur
Vs.
Daulat Mal Jain & others (JT 1996 (8)
SC 387 = 1997 (1) SCC 35) this Court
considered the scope of Article 14 of the
Constitution and reiterated its earlier
position regarding the concept of equality
holding:
1094 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
"Suffice it to hold that 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. Thus considered, we hold that
the High Court was clearly in error in
directing the appellants to allot the land
to the respondents."

In State of Haryana & others Vs.
Ram Kumar Mann (JT 1997 (3) SC
450=1997 (3) SCC 321) this Court
observed:

"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 mis-appropriate 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.