- (1.) The present special appeal has been filed against the judgment and order dated 10.11.2005 passed by learned Single Judge of this Court, by which Petitioner's claim for promotion from the post of Beldar to the post of driver has been rejected. While assailing the impugned order, learned Counsel for the Appellant has submitted that number of persons similarly situated working on the post of Beldar have been promoted to the post of driver, but claim of the Petitioner has been ignored.
(2.) During course of arguments, learned Counsel for the Appellant has not been able to show any rule which provides promotion of a Beldar on the post of driver. The insistence has only been laid down by the learned Counsel for the Appellant that similarly situated persons have been promoted on the post of driver, but the Petitioner has been discriminated which is violative of Article 14 of the Constitution of India.
(3.) After considering the submissions made by the learned Counsel for the Appellant, we are of the view that the decision of the authority contrary to the rules or in absence of any rules, cannot be made basis for issuing a writ of mandamus directing the authorities to pass same order as has been passed in other cases. For issuing a writ of mandamus, the Petitioner must rove his case that he falls in the ambit of any statutory provision and the authorities have refused or shown inaction, to follow the Rules. The wrong decision not supported with any statute cannot be made basis for issuing a writ of mandamus. The Apex Court in the case of Gursharan Singh and Ors. v. NDMC and Ors., 1996 1 JT 647 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 v. Daulat Mai fain and Ors., 1996 8 JT 387, this Court onsidered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding: 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 legalised. 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 and Ors. v. Ram Kumar Mann, 1997 76 FLR 746 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-appropriation 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. Two wrongs can never make a right.;