S.K. Kar, J.
1. The petitioner Sh. Lalnghakliana presented this petition under Article 226 of the Constitution of India alleging violation of Articles 14, 16, 21, 309, etc., of the same and seeking appropriate reliefs.
2. Briefly stated, facts are as follows : The petitioner initially was appointed as Teacher in Hmuizawl L. P. School with effect from 1.6.1964 by Education Officer, Mizoram District Council vide Establishment Order No. 69 of 1964, dated 5.6.1964 and the Education Officer has been succeeded by the present respondents. While in service the petitioner was subsequently transferred from Hmuizawl to Sihphir, Nisapui and at Kepran L. P. School. He was asked by the said authority to remain at Aizawl vide Order No. 232 of 1970, dated 5.2.1970 as a security measure to protect his life as his name appeared in the hit-list of M.N.F. during the period of disturbance in Mizoram due to insurgency. And thereafter, in 1974 the petitioner submitted representation for his posting but no action was taken then.
3. Being aggrieved by the inaction of the respondents/concerned authority, lie presented another representation on 28.10.1994 praying for his re-instatement into service with all benefits including back-wages, etc.
4. That on request from respondent No. 2 to explore ways and means to give relief to the petitioner on humanitarian grounds ultimately on basis of Government decision vide Memo No. C.18022/3/94-RDN dated 15.4.1999 respondent No. 3 issued order No. C.18011/16/94-DTE(EDN.)/ 126 dated 6.5.1999 reinstating the petitioner into service with retrospective effect from 1.1.1970 bill with 'conditions that the reinstatement with retrospective date is for fixation of pay and pension benefits purely on humanitarian ground and no pay and allowances will be paid for the period between retrospective date of re-instatement and actual reinstatement date. However, the period between 1.1.1970 till date of re-instatement shall treated as on duty for all other purposes other than pay and allowances as indicated above'. (Para 8 of writ petition).
5. On joining the service, petitioner applied for other service benefits including back-wages and promotion to Selection Grade, etc., which was rejected by the respondent No. 3 on the strength of Govt. letter No. G.12017/3/92-EDN dated 22.8.1995 communicated vide his letter No. G.11014/2/95-DTE(EDN)/181 dated 27.7.1999. He prayed for modification of order dated 6.5.1999 to enable him to get full benefits, arrears of pay and allowances including other service benefits.
6. The petitioner further contended in his representation dated 19.1.2000 that he was 'displaced' from service without any fault attributable to him but he was neither dismissed/terminated nor removed due to any alleged link with M.N.F. movement. Accordingly, he was entitled to enjoy senior and Selection Grade scale of pay granted to his fellow teachers and he had issued notice seeking relief accordingly. That the present Government being successor of earlier authority due to Eastern Areas Regulation Act, 1971 and State of Mizoram Act, 1987, etc., the impugned order of his reinstatement is liable to be modified by it to allow him to enjoy full arrears of pay and allowances including other benefits. That the action taken by the Government is contrary to the provisions of law given by CCS (CCA) Rules, 1965 and hence, this petition for back-wages by modifying the impugned order dated 6.5.1999 and directing entitlement of promotional scope etc., etc.
7. However, by presenting his reply to affidavit-in-opposition by the State respondents he modified his prayer by making the following statement (reproduced as it is) :
'The deponent would also like to state that the Respondent had also given all service benefits including arrears of back-wages from 17.12.1990 in respect of Laltinchhawna petitioner in Civil Rule No. 27 of 1998 and Khumtiri petitioner in W.P.(C) 48 of 1999 while implementing judgment and order date 7.1.1999 and 11.5.1999 passed by this Hon'ble Court. In such a circumstance it is clear that the Respondent stayed has given differential treatment against your petitioner.'
and submitted that he is entitled to back-wages as was allowed to other similarly situated persons at least from 17.12.1990, if not from earlier period with effect from 1.1.1970.
8. Resisting the claim of the petitioner the respondents have filed affidavit-in-opposition. It is the contention by the respondents that the writ petitioner while posted as L. P. School Teacher at Kepran abruptly and unauthorisedly left the School in the earlier part of 1970 and his whereabout was not known till 1994. That the respondents were not certain whether he was even alive or dead and that departmental proceedings could not be initiated as his whereabout was not known to the respondents. They came to know about the fact of his remaining alive only when notice under Section 80 CPC was served upon them on 19.8.1994 in connection with a suit, being Suit No. 5 of 1995 in the Court of Addl: Deputy Commissioner, Aizawl. However, the Suit was dismissed on 25.1.1996 on the ground of non-maintainability and there was neither appeal nor revision against the said dismissal of the suit. That the petitioner was found guilty for suppression of material facts in the writ petition for which he is not entitled to claim equitable relief. Moreover, rights, even if any, is barred by the principle of res judicata because the same cause of action was agitated in the suit aforesaid which was dismissed on merit, etc.
9. The further contention of the respondent is that purely on humanitarian ground, notwithstanding the facts of omissions and commissions on the part of the petitioner, the respondents ordered his conditional reinstatement to the former post with effect from 1.1.1970 without back-wages but with order to count the period from 1.1.1970 till the date of reinstatement as service period for the limited purpose of fixation of pay and pensionary benefits, etc., in terms of the policy decision of the Government taken by the Council of Ministers on 5.2.1993. That it was not correct to say that there was order from the Government or any one of its subordinate authority directing the petitioner to remain at Aizawl, as contended by him, while he was posted at Kepran. That notwithstanding the fact that, there was no formal termination order, the long unauthorised absence of the petitioner from service for over 24 years may reasonably be treated as an act of relinquishment of his job. That the petitioner has improperly relied upon forged and false documents to support his claim out of greed, etc. Accordingly, the respondents opined that there is no merit in the Writ Petition which is liable to be dismissed.
10. I have heard Mr. H. Lalrinthanga, learned counsel for the petitioner and Mr. T. Vaipbei, learned Addl. Advocate General for the respondents, perused the annexures attached to the Affidavits. Mr. H. Lalrinthanga, learned counsel for the petitioner submitted that it is a covered case and this Court earlier disposed of the petitions on identical/similar facts vide judgments passed in Civil Rule No. 27 of 1998 (date of disposal 7.1.1999) and W.P.(C) No. 48 of 1998 (disposed of on 11.5.1999). I have perused the order and judgments in those Writ Petitions also.
11. Examining the facts of C.R. No. 27/98 I find that facts are not exactly identical as suggested. It was stated that the petitioner of that case was serving as L. P. School Teacher, Khawlailung being appointed on 1.4.1954. He was suspended from service with effect from 1.9.1964 on the allegation of mal-practices while functioning as Returning Officer in Village Council Election. It was followed by insurgency period and when the insurgency period was over, he applied for his reinstatement in the year 1989 referring to decision of the Government for reinstatement of person with M.N.F. link on compassionate ground with retrospective effect, but since there was no adequate order for the Government, he had been compelled to present the Writ Petition. In W.P.(C) 48/98 order dated 11.5.1999 was passed stating that, that case will be governed by the same order passed in C.R. 27/98 on 7.1.1999. So one and the same order governed both C.R. No. 27/98 and W.P. (C) 48/98. Therefore, I find that the facts in two cases are not similarly situated although there may be a link between the two cases in so far insurgency disturbance is concerned. Admittedly at the relevant period there was the disturbing situation of insurgency in Mizoram.
12. It is the well-established principle of law that a person who seeks equity must come with clean hands. A plain reading of the contents of the petition will show that the petitioner, if not purposely, did omitted to mention the incidental facts of fighting a suit on same cause of action but unsuccessfully. It has been rightly pointed out in the affidavit-in-opposition that there was deliberate suppression of facts by the petitioner by withholding the fact of institution and final result of the Suit which was instituted by the petitioner claiming similar, if not same, reliefs. This action cannot pass as honest, other things remaining the same. However, it is seen from Annexure - B/1 that the Suit in reference was dismissed only on the maintainability ground. Then again, the writ petitioner could place nothing before the Court in support of his plea that he submitted a representation in the year 1974 requesting the authority for his posting as was contended in para 5 of his petition. He enclosed copy of representation dated 28.10.1994 (Annexure-IV) only. Thus, leaving scope for a presumption at least that he remained silent for a period of 24 years without any posting.
13. Be that as it may, if we overlook this particular question of facts, it is undoubtedly the policy decision of the Govt. which was accepted by the petitioner and pursuant to the reinstatement order he had joined the service. Now Annexure B/2 attached to affidavit of the respondent and Annexure R/1 attached by the petitioner to his reply to the affidavit-in-opposition will be the significant documents wherein the terms and the conditions of service on reinstatement was ordered to be regulated. The contents of the Annexures are reproduced below for highlighting this point -
Annexure-B/2
Dated Aizawl, the 5th Feb./93
To
1. The Inspector General of Police, Mizoram, Aizawl.
2. The Chief Engineer, P.W.D., Aizawl.
3. The Director, School Education/Industries/Agriculture/ Transport.
Subject : Re-instatement of Government servants dismissed/removed due to alleged link with the MNF.
Sir,
In continuation of this Departments' letter No. A.41017/42/88-HMP/Pt dated 1.4.1992, I am directed to convey further decision of the Government for your information and necessary action as follows :-
(a) The Government of Mizoram approved re-instatement and not re-appointment of those Government servant whose services were terminated, removed/dismissed due to alleged link with the MNF and whose cases have been cleared by the Government for reinstatement and the name/names of such persons conveyed to the Department concerned.
(b) The period from the date of termination/removal/dismissal from service to the date of re-instatement shall be treated as on duty only for the purpose of determination of pensionary benefits and fixation of pay but not for any other purposes like arrears of pay, seniority etc.
(c) The effective date of their re-instatement will not be before 17.12.1990, or the actual date of re-instatement whichever is later.
(d) Service book of the Government servant after fixing his pay as at para (b) and (c) above may be submitted to the Government in Home Department positively before 15.8.1993 for examination and obtaining approval of the Government.
(e) Guideline for fixation of pay of the Govt. Servant is enclosed for your information and compliance.
(f) ........................
Sd/- RomawiaUnder Secretary to the Govt. of MizoramHome Department.'Annexure R/1
'NO. A.41017/42/88-hmp/PtGOVERNMENT OF MIZORAMHOME DEPARTMENT
Dated Aizawl, the 27th Aug., 93
To
1. The Inspector General Police, Mizoram, Aizawl.
2. Chief Engineer, Public Works Department.
3. Director, School Education/Industries/Agriculture/Transport.
Subject: Re-instatement of Government Servants dismissed/removed due to alleged link with the MNF.
Sir,
In continuation and in partial modification to this Department's letter No. A.410177/42/88-HMP/Pt date 5.2.1993, I am directed to convey the decision of the Govt. for your information and necessary action as given below :-
1. All the dismissed Govt. Servants in the list enclosed are to be reinstated on compassionate ground with retrospective effect, i.e., 17.12.1990 if not already done, but they will not be entitled to arrears pay for the period prior to 17.12.1990. The gap period will be counted for pensionary benefit including fixation of pay.
2. With regards to creation of posts in Education Department it is decided that for the accommodation of the re-instated Govt. Servants, the Department may reinstate the dismissed Govt. servants against the existing posts and create supernumerary posts for the present incumbent. After the re-instated Government Servants retire on superannuation, the supernumerary posts will stand abolished.
3. In case of loss of service book, the Head of the Department may reconstruct Service Book of the reinstated Government servants in accordance with DP&AR; (GSW) O.M. No. A.2101M/93-P&AR;(GSW) dated the 18th May, 1993 and fixation of pay may also be done in consultation with the Chief Controller of Accounts on the basis of the guidelines issued by Home Department.
Service Books submitted to Home Department are returned herewith. List of Government servants to be re-instated are enclosed.
Sd/- F.L.R. SiamaHome Commissioner.'
14. From a plain reading of the contents of these documents it will be seen that the petitioner acquired a right which is circumscribed by the contents of these annexures. But unfortunately, I find that the petitioner is trying to re-open the entire issues without caring for the propriety and limitations of relief to be granted under writ jurisdiction of the High Court (Article'226 of the Constitution). It is well settled that relief under Article 226 is discretionary and can be granted mostly on admitted facts under extraordinary circumstances for the purpose of doing complete justice. We may refer to a decision of Hon'ble Supreme Court in this context. In Sanat Kumar Dwivedi v. Dhar Jila Sahakari Bhoomi Bikash Bank Maryadit, 2000 (5) SLR (SC) 417, it was held that subsequent dispute raised by claimant regarding back-wages was clearly not maintainable where the claimant joined duties pursuant to orders that re-instatement in service was with a condition that he will not get any back-wages. It is an undisputed/admitted fact that the writ petitioner rejoined the service pursuant to conditional offer of the Government/respondent as contained in annexure B/2 and R1 (quoted earlier).
15. It will be significant to note that earlier judgment in C.R. 27/98 has not directed any detail procedure to be adopted in settling the case of the petitioner of that case against whom there was a suspension order pending. So, under no circumstances the two cases are similar. It will be convenient here to reproduce the relevant part of decision of this Court rendered in C.R. No. 27/98 to support the view expressed. It goes as under -
'Situated thus and considering all aspects of the matter, the respondents are directed to dispose of the case in the light of the Government policy and in accordance with law. The respondents are also directed to complete the exercise within a period of two months from today and pass an appropriate order including the decision for giving pensionary benefits and other salary matter.'
16. Now, coming to the submission of Mr. T. Vaiphei, learned Addl. Advocate General, he has contended that the claim of the petitioner is barred by principle of res judicata, that there was a case of fake Service book produced with the intend to gain illegally and take advantage of the situation by adopting unfair means and that under the facts and circumstances of the case, as narrated by the petitioner himself, there is no right enforceable in his favour in claiming back-wages. That there is the well-recognised principle of 'No work no pay'. He strongly argued that the petitioner cannot claim back-wages as he was given sympathetic treatment by ordering reinstatement. That he had tried to twist facts being driven by sheer greed, learned Addl. Advocate General referred me to case laws reported as (1997) 3 SCC 633 ; State of Haryana v. Surinder Kumar and Ors., and (1999) 3 SCC 495 ; Jalaldhar Improvement Trust v. Sampuran Singh and (2001) 4 SCC 309 ; Union of India and Ors. v. Subhas Chand in order to support his views. In (1997) 3 SCC 633 the Court upheld the principle of service law that there will be no question of legitimatising illegal acts done by certain persons and granting relief on the basis of wrong or illegal actions committed by certain authorities. In (1999) 3 SCC 195 it was held that there is no question or invoking the principle of promissary/equitable estoppel to protect illegal allotment/action of certain authority. In (2001) 4 SCC 309 it was held by the Hon'ble Supreme Court as follows :
'If by an erroneous interpretation of statutory rules pensionary benefits are granted to someone it would not mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases; there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is dehors the statutory rules nor can there be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship. If the Rules are not providing for grant of pensionary benefits it is for the authority to decide and frame appropriate rules but the Court cannot direct payment of pension on the ground of so-called hardship likely to be caused to a person who has resigned without completing qualifying service for getting pensionary benefits.'
17. Thus, summing up therefore I find that it has been rightly pointed out by the learned Addl. Advocate General that neither the earlier decision of this Court nor the policy decision of the Govt. would come in any way to help the present writ petitioner in getting relief. It will be a misconception, (in my humble opinion) of law to interpret the extraordinary policy decision of the Govt. as permitting the re-opening of the entire case of the petitioner who had earlier accepted the conditional offer of the Govt. for reinstatement in service. He is bound by the condition of the offer and now cannot travel beyond the periphery as circumscribed by Annexure B/2 and Annexure R/1 (quoted earlier). I find that the conduct of the applicant/petitioner is such that he does not deserve the discretionary remedy as he is found to be guilty of unreasonable delay, acquiescence in addition of not coming with clean hands. Refer AIR 1957 SC 882(884), AIR 1957 SC 397 (412) and AIR 1994 SC 579 (Para 10).
18. Moreover, the question of offering Selection Grade or higher pay scale is conditional to acquiring experience where service had been rendered by the person concerned. If there is no such record of service and experience there cannot be any question of promotion. Moreover, one cannot claim promotion as a matter of right. Similarly, there is no question of claiming back-wages for no work done by a person, unless there is a situation to show that he was obstructed by the respondents or by circumstances beyond his control etc., from discharging his duty. Insurgency is an extraordinary situation/emergency where definitely there may be suspension of right due to no fault of the Government/ authority and accordingly on that ground also, the petition for back-wages will be without cause of action.
19. The prayer of the writ petitioner was initially for modification of the order dated 6.5.99 rendered by the respondents and for direction of payment of full arrears of pay and allowances and for further direction for his up-gradation in senior/selection grade. But subsequently in his reply to the affidavit-in-opposition, he has shifted his prayer for getting benefits of back-wages only from 17.12.1990. This staggering steps and vacillation of mind would suggest no relief to be given by exercise of extraordinary power of this Court.
20. For the reasons stated as above, the petition stands disposed of without granting any specific relief to the petitioner.
21. Parties are left to bear their own costs.
.