Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: While dismissing the bail application in case registered under Section 302, 120-B Penal Code, 1860, Sameer Jain, J. held that parity cannot become the sole criteria to grant bail.

Applicant is the cousin brother of the deceased. FIR was lodged against the applicant and his parents with the allegation that applicant along with his parents ablazed the sister of informant by pouring kerosene oil and during the course of treatment she succumbed to her injuries. The dying declaration of the deceased was recorded by the Additional City Magistrate-III on the date of incident in the hospital in which she stated that applicant, his parents and brother of applicant dragged her in their home and after pouring kerosine oil ablazed her.

Counsel for the applicant submitted that entire allegation made in the FIR and in the dying declaration of the deceased was totally false and baseless and initially, during investigation, the accusation made against the applicant and his parents were found false. He vehemently submitted that co-accused have already been enlarged on bail by the co-ordinate Bench of this Court and as per dying declaration the allegation against the applicant is also at par with those accused persons, who have been enlarged on bail, therefore, on the ground of parity applicant should also be released on bail.

AGA submitted that there is specific allegation against the applicant in the dying declaration of the deceased recorded by the Additional City Magistrate-III and while granting bail to co-accused the dying declaration of the deceased could not be discussed, therefore, on the ground of parity applicant should not be released on bail.

The Court noted that the informant was not the eye-witness but Additional City Magistrate- III recorded the dying declaration of the deceased and from its perusal there is specific allegation against the applicant and co-accused. The Court from the perusal of the bail orders of other co-accused found that they were given bail without assigning any reasons. They were released on bail merely on the basis of argument advanced by counsel for the co-accused persons.

The Court reiterated the recent Supreme Court case of Birjmani Devi v. Pappu Kumar, (2022) 4 SCC 497 where the Court deprecated the practice to allow bail application without assigning any reason observing,

“38. Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

The Court dismissed the bail application stating that parity cannot become the sole criteria to grant bail and if the bail granted to similarly placed co-accused persons without assigning any reasons then on the basis of such bail orders merely on the ground of parity, the bail application should not be allowed and parity can only be persuasive in nature and cannot be binding.

[Manish v. State of U.P., 2022 SCC OnLine All 429, decided on 22-06-2022]


Advocates who appeared in this case :

Mr Kapil Tyagi, Advocate, for the Applicant;

Mr Arvind Kumar, Advocate, for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where some candidates who had applied for the post of Helper/trainee with Tamil Nadu Generation and Distribution Corporation Ltd (TANGEDCO) on the basis of a compromise order directing appointment of 84 persons, arguing that they were similarly situated, the 3-judge bench of UU Lalit, S. Ravindra Bhat* and Bela M. Trivedi, JJ has held that if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.

Factual Background

The advertisement or notification, calling for eligible candidates, to apply for the post of Helper/trainee was issued in 2012. The first round of litigation, as it were, was initiated on the ground that TANGEDCO wrongly denied relaxation of upper age limit (to apply, for the candidates). This grievance was held to be justified; the High Court directed grant of such exemption, which TANGEDCO in turn, complied. When the recruitment process started, TANGEDCO clarified that it would conduct an interview, for which it proposed to grant 15% weightage. Candidates including the present appellants, and respondent applicants, participated. Those eligible, and found to be suitable on a combined assessment of the marks obtained and the viva voce, were appointed.

Some unsuccessful candidates approached the High Court. The single judge rejected their writ petitions. In appeal, Division Bench, by its compromise order dated 14.10.2015, purely based on the compromise terms between the aggrieved candidates and TANGEDCO, directed appointment of 84 persons. The compromise order was not based on the merits, nor based on an independent assessment of the merits of the case.

The present aggrieved candidates and several others sought piggyback on the basis of the compromise order, arguing that they were similarly situated. They approached the High Court, from 2016 onwards. These aggrieved candidates’ petitions were rejected, and their claim for parity was turned down.

Analysis

The Court took note of the fact that the Division Bench, in its compromise order, proceeded to accept the terms proposed by the parties. The court did not examine the merits of the case, and why such proposal was justified in the facts of the case.

The Court explained,

“It is one thing for a public employer, to concede in the course of proceedings, to an argument, which it had hitherto clung to, but was untenable. Fairness demands that public bodies, as model employers, do not pursue untenable submissions. In such cases, a concession, which is based on law, and accords to a just interpretation of the concerned law and/or rules, is sustainable. However, it is altogether another thing for a public employer, whose conduct is questioned, and who has succeeded on the merits of the case before the lower forum (in this case, the single judge) to voluntarily agree, in an unreasoned manner, to a compromise. The harm and deleterious effect of such conduct is to prioritize the claim of those before the court, when it is apparent that a large body of others, waiting with a similar grievance (and some of whom probably have a better or legitimate claim on merits to be appointed) are not parties to the proceedings. In such cases, a compromise is not only unjustified, it is contrary to law and public interest.”

The Court observed that in the present case, there is no question of any finality to the compromise order: it cannot be treated, by any stretch of the imagination, as an order in rem, or as a binding precedent. Also, the candidates did not approach the court in time. They woke up after the compromise order, claiming parity, and filed petitions in the court. Clearly, therefore, they cannot claim any benefit from the compromise order.

The Court said,

“A principle, axiomatic in this country’s constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.”

Hence, it was held that the candidates could not claim the benefit of parity; their writ petitions were founded on the compromise order, which cannot be justified in law.

[R. Muthukumar v. The Chairman and Managing Director TANGEDCO, 2022 SCC OnLine SC 151, decided on 07.02.2022]


*Judgment by: Justice S. Ravindra Bhat


Counsels

For appellants: Advocates Gautam Narayan and T.B. Sivakumar

For TANGEDCO: Senior Advocate Joydeep Gupta

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sunil B. Shukre and Rohit B. Deo, JJ., expressed its view that,

The principle “Equal Pay For Equal Work” is not a fundamental right but a constitutional goal and entitlement to parity in Pay Scale would depend on several factors such as educational qualifications, nature of the job, duties to be performed, responsibilities to be discharged and experience.

Seminal Issue

 Whether the Minimum Competency Vocational Course (MCVC) Instructors are justified in claiming Pay Scale at par with the Full-Time Teachers in MCVC on the principle of “Equal Pay For Equal Work” which was enshrined in Articles 14 and 39(d) of the Constitution of India.

Analysis 

Bench referred to the Supreme Court decision in SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122, wherein it was held that the burden to prove and establish discrimination was on the employee seeking parity of pay and that the equality clause can be invoked in the matter of Pay Scales when there is “wholesome/wholesale identity between the holders of two posts.”

In State of Haryana v. Jasmer Singh, (1996) 11 SCC 77, it was observed that even if the designation of the job is same, there may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job and that the evaluation of such jobs for the purposes of Pay Scale must be left to expert bodies and in absence malafides, the evaluation should be accepted.

In Delhi Transport Corporation Security Staff Union (Regd.) v. Delhi Transport Corporation, (2018)16 SCC 619, Supreme Court emphasized that grant of Pay Scale is a highly technical and complex matter, which requires consideration of a host of factors, such as the qualifications, the method of recruitment and the nature of duties and therefore, the Court are loathe to interfere in matters with regard to grant of Pay Scale.

High Court expressed that the consistent judicial view has been that the doctrine of “Equal Pay For Equal Work” is not abstract and does not operate in a vacuum.

Entitlement to Parity

Considering that evaluation of posts is a complex exercise which must consider several factors, unless the decision of the executive is demonstrably malafide or irrational, the Courts must observe restrain and avoid treading on unsure grounds.

The burden to prove and establish entitlement to parity on the touchstone of Articles 14 and 39(d) of the Constitution of India is that all the employees claiming such parity and unless, a wholesale identity between the holders of the two posts is established, interference in the evaluation done by the executive would be inappropriate.

Conclusion

High Court while concluding the matter, held that in the light of the oral and documentary material on record, the only and irresistible conclusion which could have been arrived at, is that the nature of duties performed and the responsibilities discharged by Full Time Instructors are not comparable with those performed and discharged by Full Time Teachers.

“…the decision of the State Government not to grant to Full Time Instructors parity in Pay Scale with the Full Time Teachers does not suffer from the vice of arbitrariness or irrationality, and we would be loathe to interfere with a legitimate exercise of executive power, in exercise of writ jurisdiction.”

In view of the above discussion, petitions were dismissed. [Gajanan v. State of Maharashtra, WP No. 366 of 2002, decided on 2-08-2021]


Advocates before the Court:

Mr. R.L. Khapre, senior counsel with Mr. F.T. Mirza,

Mr. R.G. Kavimandan, Mr.T.S. Deshpande and

Mr. R.M. Ahirrao, for petitioners.

Mr. N.S. Rao, AGP for respondents in WP 366/2002 & 3229/2011 & for respondents 2 to 4 in WP 496/2012.

Mr. Anand Parchure, counsel for respondent 5 in WP 496/2012. Mr. S.B. Ahirkar, counsel for respondent 6 in WP 496/2012.

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Ajay Bhanot, J. dismissed the petition by stating that one illegality cannot be weighed on the illegality of some other individual.

The petitioner through his counsel Awadhesh Prasad has contended that he was not allowed to appear for the examination in the respondent university as his attendance was 38% and not the minimum set by the university which was 80% but that was not the point of his contention. He submits that one Prateek Singh with 30% attendance was permitted to appear in the examination having attendance less than him.

The Court was of the view that one illegality cannot become the basis for another illegality. An individual has to succeed on the footing of his own rights and cannot base his claim on illegality committed by an authority to favour another person. Accordingly, the petition was dismissed. [Prince Namdev v. State Of U.P.,2018 SCC OnLine All 3109, Order dated 18-12-2018]

Case BriefsHigh Courts

High Court of Jharkhand: The Single Judge Bench comprising of Chandrashekhar, J., recently dealt with a bail petition wherein he held that if the prosecution has already examined a substantial number of witnesses, a comment on the worth of the witnesses will be improper.

The facts of the case are that the petitioner had been accused of committing offences under certain sections of the Penal Code, 1860 and hence, he applied for the granting of either anticipatory bail or bail since it had been granted to similarly situated persons. The counsel for the petitioner argued that since the co-accused had been granted bail, on the point of parity, the petitioner is also entitled to bail. he further contended that conviction on the basis of last seen together is a weak piece of evidence and hence, on that basis alone, the petitioner cannot be convicted. The prosecution side contended that the petitioner’s case was different from the co-accused since he was the sole person who was responsible for the kidnapping of the deceased consequent to which he was found dead. Witnesses have asserted the presence of the petitioner at the crime scene and he was the only one whose name was registered in the FIR.

Hence, the Court dismissed the petition and accordingly, no bail was granted to the petitioner. [Ramadhar Singh @ Ramadhar Sah v. State of Jharkhand, 2017 SCC OnLine Jhar 2669 , order dated 18.8.2017]