A Litigant Coming To Court Can’t Claim Negative Discrimination Seeking Direction To Department To Act In Violation Of Law Or Rules: SC
The Supreme Court dismissed a Special Leave Petition in a case where the parties failed to produce proper documents.
The Supreme Court observed that a litigant coming to the Court cannot claim negative discrimination seeking direction from the Court to the department to act in violation of the law or statutory Rules.
The Court observed thus in a Special Leave Petition (SLP) seeking to examine the validity of an Order where the parties failed to produce proper documents or annexed incorrectly typed documents.
The two-Judge Bench comprising Justice J.K. Maheshwari and Justice Rajesh Bindal held, “Another argument was raised while referring to two communications dated 28.06.1999 appointing Ms. Jhina Rani Mansingh and Sri Lalatendu Rath as Tracer on promotion, claiming to be from the post of Peon, on the basis of which the petitioner is claiming violation of Article 14, namely the discrimination. Suffice to add, this Court cannot put a stamp on the illegalities committed by the department while perpetuating the same. A litigant coming to the Court cannot claim negative discrimination seeking direction from the Court to the department to act in violation of the law or statutory Rules.”
The Bench further reiterated that Article 14 of the Constitution of India does not envisage negative equality.
AOR Siddhartha Chowdhury appeared for the Petitioner while AOR Shibashish Misra appeared for the Respondents.
Facts of the Case
The challenge in the SLP was to the Order of the High Court passed in a Writ Petition filed by the State where the Tribunal’s Order in an Application filed by the Petitioner was set aside. The issue which arose was as to: “Whether an employee in an establishment is entitled to claim promotion on a post for which he does not fall in the feeder cadre and the post is required to be filled up 100% by way of direct recruitment?” Another issue was: “Whether a vacancy meant for direct recruitment can be filled up merely by issuing a circular in the establishment and not by issuing an advertisement calling application from the eligible candidates from public at large?” The Petitioner, in this case, was working as a peon with the Respondent-State and was appointed in the year 1978. She filed a representation to be appointed to the post of Tracer in 1999. While the said representation was pending, she filed an Application before the Tribunal and the same was disposed of at admission stage, directing the State to dispose of her representation within 3 months.
Pursuantly, the State communicated to the Petitioner that the post of Tracer will not be filled up on promotion from the lower category of post since it is not a promotional post and vacancy of Tracer will be filed up in due course by conducting the interview. The Petitioner then filed another Application before the Tribunal, seeking for its intervention and the same was transferred to the Principal Bench. The said Bench disposed of her Application by directing the State to consider her case along with similarly placed Class-IV Employees for their promotion within 3 months. However, the Petitioner’s representation was rejected due to ban on recruitments imposed by the Finance Department. In the third round of litigation, the State was directed to promote/appoint the Petitioner on the Tracer post against any vacant post. Strangely, no person was impleaded as a party and the Review Petition of the State was rejected. Resultantly, the State approached the High Court and the Tribunal’s Orders were set aside. Challenging this, the Petitioner was before the Apex Court.
Reasoning
The Supreme Court in view of the facts and circumstances of the case, noted, “… even at the stage of filing SLP before this Court, proper care was not taken to examine the relevant Rules and place the same on record. … The importance of responsible drafting and diligent pleading was emphasized by this Court in Saumya Chaurasia v. Directorate of Enforcement.”
The Court remarked that there cannot be more casualness than this where the authority of the State is fighting litigation and does not apprise the Tribunal or the Court about the relevant applicable Rules.
“The effort may be to put under covers the illegalities committed by them earlier by granting promotion from the post of Peon to that of Tracer in violation of the 1979 Rules. Even the High Court in the impugned order has not referred to the 1979 Rules but has quoted paragraph 3(d) of the Letter No.4775 dated 26.02.1980”, it added.
The Court further said that though, the claim of the Petitioner was rejected on the ground that she is not eligible for the post of Tracer, however, as per 1979 Rules, the post of Tracer is to be filled up to 100% by way of direct recruitment in terms of Rule 5(1)(e) of the 1979 Rules and the method of direct recruitment has been provided in Rule 7 thereof.
“Undisputedly, the process as provided in the Rules was not followed. The post of Tracer, not being promotional post from the post of Peon, there is no merit in the claim of the petitioner”, it also noted.
Before parting with the Order, the Court remarked that this case is a glaring example of casualness on the part of the State Authorities while dealing with the litigation as the issue could have been resolved at the very first stage when a representation was made by the Petitioner seeking promotion to the post of Tracer way back in the year 1991.
“The chapter could have been closed merely while responding to the same while referring to the relevant statutory 1979 Rules. To some extent it was done but false hopes are created in the minds of employees if some other similarly situated are granted the benefit, which itself is contrary to the Rules”, it added.
The Court concluded that such conduct is not expected from the State which is the major litigant and this case is an example of unnecessary generation of litigation by the State where the authorities need to circumspect and be more careful.
Accordingly, the Apex Court dismissed the SLP.
Cause Title- Jyostnamayee Mishra v. The State of Odisha and Ors. (Neutral Citation: 2025 INSC 87)
