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Article 14 is a positive concept and cannot be enforced in a negative manner on grounds of parity: High Court of Delhi

Article 14 of the Constitution of India is a positive concept and does not promote negative equality. Irregularity and illegality cannot be perpetuated on the ground that illegal benefits have been extended to others. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well and the same was upheld by High Court of Delhi through the learned bench led by Justice Manmohan in the case of KAMLESH KUMAR JHA vs. DIRECTORATE GENERAL BORDER ROADS AND ORS. [W.P.(C) 1306/2022] on 03.02.2022.

The facts of the case are that the Petitioner is an Executive Engineer (Civil) in the Border Roads Organisation and is aggrieved by the non-grant of departmental permission to proceed on deputation to NHAI. The Petitioner applied for deputation to NHAI and forwarded a copy of his application to be processed by the Border Roads Organisation. According to the Petitioner, after receiving the consent of all senior officers, including the Additional Director General Border Roads, the Petitioner’s Application was forwarded to the Director General Border Roads, however, his application was rejected on the ground that the Border Roads Organisation intends to post the Petitioner to a high altitude area to fill vacant positions of Executive Engineers in the ongoing Border Roads Organisation projects.

Present writ petition has been filed challenging the rejection letter and he seeks directions to the respondent to allow his application for deputation to the National Highways Authority of India on the ground of parity.

The petitioner’s counsel stated that the he had already completed the pre-condition of two years’ service in the high altitude area, as mandated under clause 7 (k) of Standard Operating Procedure on Deputation. He had served three years and three months in high altitude area, five years in extremely hostile area, therefore, counsel contended that the petitioner satisfied the eligibility criteria for proceeding on deputation and denial of Departmental consent on the ground that Petitioner was to be posted to a high altitude area was erroneous. He pointed out that the similarly placed Officers, had appeared before the NHAI Interview Board without obtaining prior approval whereas the request of similarly placed officers had been acceded to in the past.

Court was of the view that the organisational interest of Border Roads Organisation is of paramount importance and if the superior officers of the Border Roads Organisation are of the opinion that the Petitioner is a ‘Suitable Officer’ to be posted in a high altitude area, then the same calls for no interference in writ jurisdiction especially when the impugned decision is not perverse.

The Court observed that, “Article 14 of the Constitution of India is a positive concept and does not promote negative equality. Article 14 is positive concept and cannot be enforced in a negative manner. Irregularity and illegality cannot be perpetuated on the ground that illegal benefits have been extended to others. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well.”

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Judgment reviewed by – Shristi Suman

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