There Is No Negative Equality ; Benefit Conferred Without Legal Basis Cannot Be Relied Upon As A Principle Of Parity: Supreme Court

The Supreme Court has observed that Article 14 of the Constitution does not envisage negative equality.

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, the bench comprising Justices Uday Umesh Lalit, S. Ravindra Bhat and Bela M. Trivedi observed.

In this case, in 2015, the Madras High court directed the appointment of 84 persons by recording the compromise terms between the aggrieved candidates and TANGEDCO. Later, several other unsuccessful candidates approached the High Court, claiming parity with these persons. A single judge dismissed several of those writ petitions, holding that such candidates could not avail the benefit of the compromise order. In another set of writ petitions, the single judge allowed the claims. The Division Bench dismissed the candidates' appeals were dismissed and TANGEDCO's appeals were allowed. The first set of appeals before the Apex Court were by aggrieved candidates is directed against that common order. The second set of appeals, by TANGEDCO, is directed against the order which required it to offer employment to similarly placed candidates who had not approached the court earlier, but filed writ petitions in 2016, 2017 and 2018.

The candidates contended that restricting the benefit of employment to those who approached the court earlier, amounted to a violation of Article 14 of the Constitution. According to them, in terms of performance, the aggrieved candidates might well have secured better ranking than those 84 unsuccessful candidates who were offered employment, by the compromise order. On the other hand, TANGEDCO contended that the compromise order was not based on any rule or law, but on a mere concession. It contended that a wrong committed on the basis of a wrong order, cannot compel the performance of an act which is not justified in law as there is no question of parity or negative equality.

Taking note of the factual aspects, the bench noted that the compromise order was not based on the merits, nor based on an independent assessment of the merits of the case. Regarding the compromise order, the bench observed thus:

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 therefore held that the candidates could not claim the benefit of parity as their writ petitions were founded on the compromise order, which cannot be justified in law. Referring to Basawaraj & Anr. v. Special Land Acquisition Officer (2013) 14 SCC 81 and other judgments, 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." 

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