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IN THE HIGH COURT OF ALLAHABAD
Saurabh Lavania, J.
Shailendra Kumar – Petitioner
Versus
State Of U.P.Through Secy.Of Edu.Secondary Lucknow and Ors. – Respondents
Service Single No. - 6603 of 2010
Decided On : 17-02-2020
Constitution of India, 1950 – Article 14, 16 – U.P. Intermediate Education Act, 1921 – Power of High Courts to issue certain writs – To accord financial approval to appointment of petitioner as Assistant Teacher for payment of regular salary from State Exchequer – Held, Court of view that the petitioner is not entitled to any indulgence from this Court on ground that he is continuing on post appointment made in violation of mandatory provisions of Statute/Rule would be illegal and thus, void. Illegality cannot be rectified. Illegality cannot be regularized, only an irregularity can be – Needless to say that it is well settled that when there is conflict between law and equity, it is law which has to prevail – It is latin maxim "dura lex sed lex" is to be taken note of, which means 'that law is harsh but it is law – Equity can only supplement law, but it cannot supplant or override it – Further, it is also settled principle of law that Court should not exercise its jurisdiction only on sympathy – Writ petition dismissed.
JUDGMENT :
1. Heard learned counsel for the petitioner, Sri Gyanendra Srivastava, learned Standing Counsel for the respondent Nos. 1 to 3 and Sri Shubham Gupta, learned counsel for the respondent No. 4.
2. The writ petition has been filed seeking direction to the respondents to accord financial approval to the appointment of the petitioner as Assistant Teacher in Amar Shahid Chandra Shekhar Azad Inter College, Haraipur, District-Unnao (in short "College") and for payment of regular salary from the State Exchequer w.e.f. 01.11.2008.
3. Prior to filing of the present writ petition, the petitioner approached this Court by means of the Writ Petition No. 5854 of 2008 (Shailendra Kumar v. D.I.O.S. Unnao and others), thereby seeking direction to the respondents to appoint the petitioner on suitable post on compassionate ground under the Dying in Harness Rules. The said writ petition was finally disposed of by means of the judgment and order dated 19.09.2008, which reads as under:-
The instant writ petition has been preferred with the following reliefs:-
1. To issue a writ, order or direction in the nature of Mandamus commanding the Opp. Parties particularly Opp. Party No. 2 to consider the case of the petitioner for his appointment on compassionate grounds under Dying-in-harness Rules on any post as per qualification of the petitioner.
2. To issue a writ, order or direction in the nature of Mandamus commanding the Opposite Parties to decide the petitioner's latest representation dated 12.07.2007 as contained in Annexure No. 9 to this writ petition.
3. To issue any such other order which this Hon'ble Court may deem fit and proper in the circumstances of the case.
4. To award cost of the writ petition.
The petitioner restricts his prayer only to the extent that his representation as contained in Annexure No. 9 to the writ petition may be directed to be disposed of within the stipulated period.
Learned Standing Counsel has no objection to this innocuous prayer.
In the facts and circumstances of the case, I direct the petitioner to file a fresh comprehensive representation along with certified copy of this order as well as complete copy of the writ petition with all Annexures before opposite party no. 2 within a week from today and on such representation being filed, as stipulated above, the concerned competent authority shall decide the same by a speaking and reasoned order within three weeks of the receipt of representation, as contemplated above, exercising its unfettered discretion on the basis of record before him in accordance with relevant Rules, recent Government Orders, Scheme/Policy without being influenced by any of the observations in this judgment, since this Court has not entered into the merits of the present case.
Subject to the above observations and directions, writ petition stands partly allowed by moulding the relief to the extent indicated above.
No costs."
4. In compliance of the judgment and order dated 19.09.2008, the Committee of Management of the College considered the case of the petitioner for appointment on compassionate ground and vide order dated 16.10.2008, the petitioner was appointed by the respondent No. 4/Committee of Management of the College on the post of Assistant Teacher in the pay-scale of Rs. 5500-9000/-.
5. The respondent Nos. 1 to 3/State filed the counter affidavit annexing therewith the order dated 29.05.2009, passed by the District Inspector of Schools (DIOS), Unnao, whereby the claim of the petitioner with regard to appointment on suitable post on compassionate ground under the Dying in Harness Rules was rejected. On coming to know about the order dated 29.05.2009, the petitioner amended the writ petition and also challenged the order dated 29.05.2009.
6. In regard to the reliefs sought in the writ petition, learned counsel for the petitioner stated that the father of the petitioner was a Headmaster of the Institution and he expired o
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