There is no negative equality; benefit conferred without legal basis cannot be relied upon as a principle of parity: Justice Harish Kumar

In Mansoor Alam, Son of Mohammad Mehboob Alam @ Manghu Mian vs.The State of Bihar through the Additional Chief Secretary, Minority Welfare Department, Government of Bihar & Ors. (2025), Justice Harish Kumar delivered a judgement on June 18, 2025. 

Relying on a judgments in Sant Ram Sharma vs. State of Rajasthan & Ors., reported in AIR 1967 SC 1910, Abraham Jacob & Ors. vs. Union of India, reported in (1998) 4 SCC 65, Union of India & Anr. vs.Central Electrical & Mechanical Engineering Services (Ce&Mes) Group ‘A’ (Direct Recruits) Assn., CPWD, reported in, (2008) 1 SCC 354, Paluru Ramkrishnaiah & Ors. vs.Union of India & Anr. reported in (1989) 2 SCC 541, Union of India & Ors. vs. Rakesh Kumar, reported in (2001) 3 Supreme 48. The Employees’ State Insurance Corporation vs. Union of India & Ors., (Civil Appeal No. 152 of 2022) and Tej Prakash Pathak & Ors. vs. Rajasthan High Court & Ors., reported in (2013) 4 SCC 540, it was submitted that in similar circumstances, Shia Waqf Board had taken a decision to give pension/family pension to its employee at par with the employees of the State Government, but when discrimination has been caused, some of the aggrieved persons approached this Court and when in the case of some of the employees, suitable orders have been passed and have been allowed pensionary benefits, the State Government without having any justifiable reason by issuing the impugned order that snatched away the rights and entitlement of the petitioners and other identically situated employees.

The Court observed: the doctrine of ultra vires envisages that a Rule making body must function within the purview of the Rule making authority, conferred on it by the parent Act. As the body making Rules or Regulations has no inherent power of its own to make rules, but derives such power only from the statute, it must necessarily function within the purview of the statute. Even if delegated legislation should not travel beyond the purview of the parent Act. In view of the settled legal proposition and the facts that till date the proposed Regulation has not received the sanction of law and/or published in the official gazette, any reliance to claim the pension/family pension is not at all permissible in the law. The decision of the Waqf Board or any order issued in this behalf is per se cannot be said to be administrative and executive instruction and has no force of law in absence of any provision in the instant Regulations and the prescription of the Act, 1995."

The Court refered to Supreme Court's decision where it examined whether a mandamus could have been issued to the State to carry out amendment. The Court finally held that the answer could only be in the negative.

Justice Kumar's judgement reads: "it would also be pertinent to observe that the contention of the petitioners that at some instances, some of the employees have been accorded pensionary benefits have not persuaded this Court in any manner. Merely, because the benefit has been wrongly granted to another employee that by itself shall not entitle another employees to similar benefits." He concluded:"Well settled it is that there is no negative equality; benefit conferred without legal basis cannot be relied upon as a principle of parity. In view of the discussions made hereinabove in the premise of the settled legal position, this Court does not find any merit in all the writ petitions. Accordingly, all the writ petitions are hereby dismissed. The parties shall bear their own cost."