# Yogesh Kumar Gupta v. Bharat Heavy Electronicals Ltd. & Ors - **Citation:** (2013) 3 ILRA 1367 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2013-10-09 - **Case number:** Civil Misc. Writ Petition No. 40868 of 1996 - **Bench:** Sudhir Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogesh-kumar-gupta-v-bharat-heavy-electronicals-ltd-ors-42704 - **Pages:** 4 ## Headnote Constitution of India, Art. 226-Right to appointment-petitioner completing 1368 INDIAN LAW REPORTS ALLAHABAD SERIES apprenticeship-claim for regular appointment on basis of parity-held- no right for regular appointment,except to participate in selection process-illegality committed for other persons-same mistake can not be protected by court-two wrong can not make one right. Held: Para-3 & 8 ## Text 3 All] Yogesh Kumar Gupta Vs. Bharat Heavy Electronicals Ltd. & Ors. 1367 the excess payment cannot be recovered. Excess payment is possible to be made by the order of the employer. It is also possible by interim or final order of the Court, which ultimately is found to be erroneous. In case of former, a recovery is permissible under the condition enumerated above. However, in latter case, it depends upon the facts and circumstances of each case and it is primarily within the discretion of the Court." (emphasis added) 33. The Court also relied upon an earlier Division Bench Judgement in Union of India Vs. Rakesh Chandra Sharma and others 2004 (1) ESC (Allahabad) 455, observing that there is no law of universal application, restraining the employer from recovering the extra amount paid to an employee beyond entitlement. The Court also observed that rectification of mistake is not only permissible but desirable otherwise system/ requirement of auditing of accounts would be rendered nugatory. 34. These authorities clearly show that there is no right of petitioners in law or otherwise that admitted excess payment wrongly made cannot be recovered. As a matter of right, petitioners cannot contend that though they had been paid certain amount wrongly in excess to what was due to them, yet it cannot be recovered by the administration. 35. In view of above and looking to the findings in respect to questions no. 1 and 2, this Court has no doubt that this writ petition deserved to be allowed. 36. In the result, the writ petition is allowed. The impugned recovery is hereby quashed. It is made clear that so long as the G.O. dated 28.11.2007, prescribing "Incentive Allowance" to police officers of subordinate ranks working in Intelligence is not modified, recalled or revoked, or the petitioners are not transferred from Intelligence to other wing, they shall be entitled for the benefit under aforesaid G.O. It is also provided that if the aforesaid benefit is withdrawn or modified, the subsequent entitlement of petitioners shall be governed accordingly. 37. It is, however, made clear that looking to the findings recorded by this Court with respect to question no. 1, it shall be open to respondent-competent authority to examine every individual case in the light of the discussion made above, and if it is found that any person has been paid "Incentive Allowance", over and above what was prescribed in aforesaid G.O., it shall be open to respondents to initiate appropriate proceedings for recovery of that much amount but after giving due opportunity of hearing to concerned persons. 38. No costs. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 09.10.2013 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Civil Misc. Writ Petition No. 40868 of 1996 Yogesh Kumar Gupta ...Petitioner Versus Bharat Heavy Electronics Ltd. & Ors. ...Respondents Counsel for the Petitioner: Sri K.M. Asthana, Sri Indra Mani Tripathi Counsel for the Respondents: S.C., Sri K.N. Mishra, Sri Sandeep Saxena Constitution of India, Art. 226-Right to appointment-petitioner completing 1368 INDIAN LAW REPORTS ALLAHABAD SERIES apprenticeship-claim for regular appointment on basis of parity-held- no right for regular appointment,except to participate in selection process-illegality committed for other persons-same mistake can not be protected by court-two wrong can not make one right. Held: Para-3 & 8 3. The submission is thoroughly misconceived. I find that it is based on directions issued by Apex Court in UPSRTC Employees Federation vs. UPSRTC reported in JT 1995 (2) SC 26 wherein the Court laid down four conditions which have to be observed by an employer in respect to apprentices who had undergone apprenticeship training. 8. In his own words, even if some appointments have been made in flagrant violation of Article 16(1) of the Constitution, in absence of challenge to those appointments, obviously this Court cannot quash the same but illegality committed in some other matter cannot give any benefit to petitioner on the ground of parity. Two wrongs will never make one right. Case Law discussed: JT 1995 (2) SC 26; AIR 1987 SC 227; 1998(2) ESC 1394; 2000(5) SCC 438; 2006(1) UPLBEC 950; JT 2009(14) SC 233; W.P. No. 33827 of 2011; W.P. No. 2255(MS)of 1998; AIR 2003 SC 3983; AIR 2004 SC 2303; AIR 2005 SC 565; AIR 2006 SC 1142; Special Appeal No. 375 of 2005; 2007(5) SCC 317; AIR 2008 SC 3182; 2008(7) SCC 245; 2009(1) SCC 565; 2009(2) SCC 589; 2009(5) SCC 65; JT 2009(6) 463; 2009(11) SCALE 149; 2009(11) SCALE 619; 2009(11) SCALE 731; JT 2009(13)SC 422. (Delivered by Hon'ble Sudhir Agarwal, J.) 1. Heard Sri I.M. Tripathi, learned counsel for the petitioner and perused the record. 2. Learned counsel for the petitioner contended that petitioner has completed Apprenticeship training. For regular appointment the respondent-Bharat Heavy Electricals Limited (hereinafter referred to as the "BHEL"), a Government of India undertaking, though proceeded to appoint apprentices, junior to petitioner, but petitioner was not called for interview and has not been appointed. It is contended that petitioner has a right in equity and otherwise and, therefore, non-appointment of petitioner is wholly illegal. It is further submitted that in equity or under the Rules, either way, petitioner, has a matter of right, was/is entitled to be appointed on a regular technical post in Electronic Trade having completed apprenticeship training. 3. The submission is thoroughly misconceived. I find that it is based on directions issued by Apex Court in UPSRTC Employees Federation vs. UPSRTC reported in JT 1995 (2) SC 26 wherein the Court laid down four conditions which have to be observed by an employer in respect to apprentices who had undergone apprenticeship training: (i) Other things being equal, a trained apprentice should be given preference over direct recruits. (ii) For this, a trainee would be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India vs. Hargopal, AIR 1987 SC 227, would permit this. (iii) If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the concerned service rule, if the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice has undergone training would be given. 3 All] Yogesh Kumar Gupta Vs. Bharat Heavy Electronicals Ltd. & Ors. 1369 (iv) The concerned training institute would maintain a list of the persons trained year wise. The persons trained earlier would be treated senior to the persons trained later. In between the trained apprentice, preference shall be given to those who are senior. 4. Based on the above directions certain apprentices challenged a process of direct recruitment by an establishment on the ground that without absorption of trained apprentices the direct recruitment from open market cannot proceed. A Full Bench of this Court looked into this aspect in Arvind Gautam vs. State of U.P. and Others, 1998 (2) ESC 1394 and held that apprentices are to go through the recruitment provided in the statute and there is no automatic absorption in the vacancy which are to be filled by the direct recruitment under statute. The matter was taken in appeal and the Full Bench's decision was affirmed in U.P. Rajay Vidyut Parishad Apprenticeship Welfare Association and another Vs. State of U.P. and others, 2000(5) SCC 438. The Apex Court held that an apprentice has to undergo the procedure of examination/interview. He has to compete with open market candidates in a selection which is to be held in accordance with statute/rules. The Court, however, observed that while appearing in aforesaid selection the trained apprentices who have completed apprenticeship training may be given benefit laid down in condition No. (i) and (iv) in the judgment in UPSRTC Employees Federation (supra). 5. The issue was again considered by a Division Bench in Bhoodev Singh and others Vs. Chairman, U.P. S.E.B. and others 2006(1) UPLBEC 950 and the question formulated by Court was, "whether petitioners, who were claiming appointments, were required to participate in written examination for appointment or not". The Court held that a candidate cannot claim exemption from the written test if it is required for others under relevant rules. The right of apprentice trainees is limited only to the preference, other beings being equal. They cannot claim any other right, or claim different treatment from other non-apprentice candidates. 6. The above decision has been affirmed in appeal in Santosh Kumar Tripathi and others Vs. U.P. Power Corporation and others, JT 2009(14) SC 233. Similar view has been taken by this Court in many other cases like, Civil Misc. Writ Petition No. 6841 of 1998 (Ramesh Dhar Dwivedi Vs. State of U.P. and Others) decided on 28.2.2006; Civil Misc. Writ Petition No. 33827 of 2011, Dharampal Sharma and others Vs. State of U.P. And others, decided on 16.08.2011; and, Writ Petition No. 2255 (MS) of 1998, Apprentice Training Youth Welfare Association Vs. U.P. S.R.T.C. and others, decided on 31.08.2012. 7. Though admittedly selection has not been challenged in the petition but Sri Tripathi, learned counsel for the petitioner contended that others have been appointed without any advertisement but the same treatment has not been given to petitioner. 8. In his own words, even if some appointments have been made in flagrant violation of Article 16(1) of the Constitution, in absence of challenge to those appointments, obviously this Court cannot quash the same but illegality committed in some other matter cannot give any benefit to petitioner on the ground of parity. Two wrongs will never make one right. 1370 INDIAN LAW REPORTS ALLAHABAD SERIES 9. It is well settled that two wrongs will not make one right. (See 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 565; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142). 10. Recently a Division Bench of this Court (of which I was also a member) in Special Appeal No.375 of 2005 Shiv Raj Singh Yadav Vs. State Of U.P. And Others, decided on 27.05.2011, has considered this aspect in detail and in paragraph no.22 it held as under: "22. Once it is established that the petitioner had no legal right of regularisation, merely because some irregularities and illegalities have been observed by the respondents in some other cases with respect to regularisation, that would not confer any right upon the petitioner to claim parity. The right of equality under Article 14 and 16 of the Constitution is a positive concept and not a negative one. (See Post Master General, Kolkata and others Vs. Tutu Das, 2007(5) SCC 317; Punjab National Bank by Chairman and Anr. Vs. Astamija Dash, AIR 2008 SC 3182; Punjab State Electricity Board and others Vs. Gurmail Singh, 2008(7) SCC 245; M/s. Laxmi Rattan Cotton Mills Ltd. Vs. State of U.P. and others, 2009(1) SCC 565; Panchi Devi Vs. State of Rajasthan and others, 2009(2) SCC 589; State of Bihar Vs. Upendra Narayan Singh, 2009(5) SCC 65; State of Uttaranchal Vs. Alok Sharma and others, JT 2009(6) SC 463; State of Punjab and another Vs. Surjit Singh and others, 2009(11) SCALE 149; State of Madhya Pradesh and others Vs. Ramesh Chandra Bajpai, 2009(11) SCALE 619; Shanti Sports Club and another Vs. Union of India and others, 2009(11) SCALE 731; Ghulam Rasool Lone Vs. State of J & K and others, JT 2009(13) SC 422." 11. In view of above discussion, the writ petition lacks merit. Dismissed. Interim order, if any, stands vacated. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 03.09.2013 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Civil Misc. Writ Petition No.45858 of 2013 Abhay Kumar Mishra ...Petitioner Versus State of U.P. and Ors. ...Respondents Counsel for the Petitioner: Sri Surendra Pratap Singh Counsel for the Respondents: C.S.C. Constitution of India, Art.-226 petitioner seeking direction to decide representationcounsel fail to reply the provision-which provides representation-nor disclosed as to how his rights affected-held-no legal right to enforce-petition-misconceived-dismissed. Held: Para-4 Since no legal right has been shown to exist for enforcement whereof the petitioner has come to this Court, the relief sought cannot be granted. Case Law discussed: (2008) 2 SCC 280; (1977) 4 SCC 145; AIR 1966 SC 334; 1993(1) SCC 485; 1991(3) SCC 47; 2007(5) ADJ 280(DB); 2001(1) ESC 317; (1997) 8 SCC 488.