H. SALIL PRADEEP SINGH vs DISTRICT EDUCATION OFFICER AND ANOTHER

Sharad Kumar Sharma, JÂ

The appellant in the present appeal is the writ petitioner. In the appeal he challenges the judgment passed by the learned Single Judge dated 29th

June, 2012, whereby, the learned Single Judge has dismissed his Writ Petition, in which, he has challenged the orders dated 16th February, 2006,

passed by the respondent No.1 to the Writ Petition, withdrawing the financial approval granted to the appointment as Class-IV employee as well as

the consequential order dated 18th February, 2006, passed by respondent No. 2, i.e. Principal, Messmore Inter College, Pauri, District Pauri

Garhwal, which happens to be a recognized aided minority institution.Â

The brief backdrop under which the appellant questioned the validity of the two impugned orders in the Writ Petition are that the appellant claims to

have been appointed by Principal, i.e. Respondent no. 2 as Class-IV employee as back as on 27th April, 2002. According to the submission made

by the learned counsel for the appellant, the appointment of the appellant as Class-IV employee by Respondent no. 2 was against the substantive

vacant post available with the Institution on the date of his appointment. Â

The appointment given to the petitioner as Class-IV employee was subsequently sent by the Principal to the District Inspector of Schools, which

has now been nomenclature as District Education Officer (hereinafter to be called as “DEOâ€) for its financial approval. The DEO in pursuance

to its decision dated 23/26th April, 2002, had granted the financial approval of the appointment of the appellant and the same was communicated by

the DEO to the Principal and the Management. It is the contention of the appellant that in pursuance to the approval granted by the DEO on 26th

April, 2002, respondent No.2, herein, who is the appointing authority has communicated the approval of his appointment thus granted by the DEO

according to the Regulation 100 of the Regulations as framed under section   6 G of the Intermediate Education Act, 1921 (hereinafter to

be called as ‘Act of 1921’) Â

What is borne out from perusal of the records is that on the basis of a complaint which was lodged before Lok Ayukta raising an allegation against

the appointment of the appellant as Class-IV employee, the proceedings were drawn and the Lok Ayukta, by virtue of an order dated 11/08/2005, as

passed in Case No. 884 of 2004, has directed the respondents for taking an appropriate action against the irregular appointment of the appellant.Â

The basis of the passing of the order by the Lok Ayukta had been on the ground that according to complaint, the appointment of the petitioner was in

violation of Regulation 100 read with Regulation 4 of Chapter III of the Regulation and, as such, it cannot be sustained because it suffers from the

discrepancy of having been appointed on 27th April, 2002, when at that relevant point of time, he was son of the Manager of the institution who was in

the helm of affairs of the Institution.Â

As per the findings recorded in the impugned order dated 16/02/2006, the DEO observes that on the basis of the direction issued by the order dated

11/08/2005, passed in Case No. 684 of 2004 by Lok Ayukta for taking an appropriate action, the office of the District Inspector of School vide its

letter No. 35250/2001-02 dated 06/08th February, 2002, had called for information from the office of the Principal and vide his reply dated 22/02/2002,

the Principal fortified the fact that the appellant is the son of the Manager.  The findings and reason recorded in the order show that the

appellant during the course of hearing before the DEO, on the basis of show cause 29/11/2005 and reply 05/12/2005 submitted by him, he admits to be

son of the Manager. In defence, it has been observed in the impugned order that the then Manager vide his letter dated 22/02/2002 had informed

about the relationship of appellant with the Manager. Â

Hence, in the light of the direction issued by the Lok Ayukta in its judgment dated 10th August 2005, the DEO proceeded to issue a show cause

notice on 29th November 2005 to the appellant, wherein, the DEO while referring to Regulation 100 read with Regulation 4, called appellant to

submit his reply as to why his appointment dated 27th April, 2002 may not be cancelled, because of the fact that the same happens to be in violation of

Regulation 100 read with Regulation 4 of the Regulations as framed under the Act of 1921 and has been obtained by fraud.Â

To this show cause notice dated 29th November, 2005, asking the appellant to appear before DEO on 05/12/2005Â and according to the assertion

made by the petitioner himself in the writ petition, he admits the fact that he submitted his reply to the show cause as given by him on 5th December,

2005 before DEO, wherein, he refuted the contents of the show cause and supported his order of appointment on the premise that his appointment has

been made after due recourse to selection as held by the Selection Committee and, hence, no fault could be pointed out in his recruitment. He

further submitted that since he has worked for over more than three years on the post of Class-IV employee and his services have been made

permanent, taking an action at a belated stage is arbitrary and would not be conducive and further an inquiry ought to have been conducted by the

respondents before passing the impugned order. Â

The District Education Officer (New nomenclature to the office of District Inspector of Schools), after considering the reply extended by the

appellant, he had proceeded to pass the impugned order to the writ petition on 16th February, 2006, whereby, he has withdrawn the financial approval

granted to the appointment of the appellant.   In the said order, as passed by the DEO, he has withdrawn the financial approval. On the said

order dated 16/02/2006 being communicated to the Principal, he proceeded to pass the impugned order dated 18th February, 2006, whereby, it was

held out that the appointment of the petitioner as ClassIV employee was made on 27th April, 2002, dehors to the Regulation.Â

Being aggrieved against the two orders, the petitioner preferred Writ Petition No. 196 (S/S) of 2006. In the Writ Petition, the pleadings were

exchanged and the respondents in their counter affidavit supported their stand taken in the impugned order. The Writ Petition was dismissed by the

learned Single Judge by the impugned order dated 29th June, 2012, impugned in the present appeal holding that appointment of petitioner was contrary

to the Regulations.Â

In the Special Appeal, primarily, the counsel for the appellant has confined his argument on the following issues:-

That the provisions of Section 16 GG (4) of the Act, a reference of which has been made in the impugned order, would not be applicable as the said

provision pertains to the Teachers and Headmaster.Â

The embargo of restriction in the appointment of a person related to the Member of the Committee of Management, as contemplated under

Regulation 4 of the Regulations framed under the Act would not apply to him because according to the case of the appellant, the restriction used

therein would apply for Teachers only.Â

That prior to the passing of the impugned order, as no inquiry was conducted nor petitioner was heard and, hence, the action of the respondents

cancelling appointment of the petitioner is violative of principle of natural justice.Â

He submits that despite of the fact that he might be related to the then Manager of the Committee of Management, but the said relationship will not

have any bearing for the reason that according to Regulation 100 framed under the Act, since the appointing authority of Class-IV employee being a

Principal, it will have no nexus because the Manager may not be having any influential effect in the appointment process. Â

He submits that the impugned orders cannot be sustained for the reason that there was no concealment with regards to his relationship with the

manager at the time of appointment as Class-IV employee because according to the submission of appellant, the fact of being related to the Manager

was disclosed by the appointing authority vide his letter dated 22nd February, 2002 to DEO, prior to the appointment and, hence, it cannot be said

that the appointment was obtained by playing fraud.Â

Respondents cannot ask the appellant to deposit salary with interest w.e.f. 29th June, 2002 till February 2016 till he worked with the institution.

Lastly, he argues that some compassion is to be shown to the appellant as he is now about 54 years of age and has family to be looked after.

The counsel submits that after dismissal of the writ petition, the respondents are intending to recover the amount of salary remitted for the period till

he had worked after the dismissal of the writ petition.

Let us deal with the issues as formulated above and as argued by the counsel for the appellant.  Â

The power of appointment of Class-IV has been provided under Regulation 100 which is quoted hereunder :

“[100. In respect of clerks, which includes Librarian also, the Management Committee and in respect of Fourth class employees, the Principal /

Headmaster shall be the appointing authority. Regarding appointment, probation of clerk, which includes Librarian also, and Fourth class employees,

the period for which is one year, confirmation and other service conditions, etc. relating to it, provisions with necessary changes described in

Regulations 1, 4 to 8, 10, 11, 15, 24 to 26, 30, 32 to 34, 36 to 38, 40 to 43, 45 to 52, 54, 66, 67, 70 to 73 and 76 to 82 shall apply. But in respect of

Fourth class employees, Regulations 77 to 82 would apply only when necessary direction in this regard are issued by the State Government.Â

Provisions in Regulations 9, 12, 13, 14, 16 to 20, 27, 28, 54, 55 to 65 and 97 would not apply in respect of such employees].â€​

It is necessary to notice Regulation 4. Regulation 4 reads as under :-

“4& dksbZ Hkh v/;kid] tks izcU/k lfefr ds fdlh lnL; vFkok iz/kkuk/;kid vFkok vkpk;Z dk lEcU/kh gS] laLFkk esa vLFkk;h vFkok Li’V fjDr

LFkku ij ugha fu;qDr fd;k tk;sxk vkSj u laLFkk esa fdlh dks izk/kkuk/;kid vFkok vkpk;Z fu;qfDr fd;k tk;sxk tks izcU/k lfefr ds fdlh lnL; dk lEcU/kh

gksA bl fofu;e ds iz;kstu ds fy, **lEcU/kh** esa fuEufyf[kr rkRi;Z gS% firk] ckck] llqj] pkpk ;k ekek] iq=] iks=] nkekn] HkkbZ] iq=h] iksf=] iRuh]

nknk] Hkrhtk] ppsjk ;k eesjk HkkbZ] lkyk] cguksbZ] ifr] nsoj] T;s’B] uUn] lkyh] iq=&ca/kq] cfgu] Hkkot] ppsjk HkkbZ dh iRuh] ekWa] lkl] pkph

;k ekSlhAâ€​

The first argument which is tried to be argued by the learned counsel for the appellant is that the provisions of Section 16 GG(4) will not apply

for two reasons, firstly that it relates to teachers only and secondly, it does not contain any sub clause (4). Hence, reference of Section 16 GG(4) in

the impugned order which is the basis of the order is not sustainable in the eyes of law, as being non existing provision in the statute. Apparently and

according to the case of the appellant, he had been appointed as class IV employee in the institution by the Principal under Regulation 100, Chapter III

which deals with the procedure for appointment of class IV employee and such other employees as referred in Regulation 100. Admittedly, the

appellant has derived the appointment as class IV employee under Regulation 100, hence, he is bound by all the legal implications which flow from

Regulation 100. The Regulation 100 and Regulation 4 are apparently part of chapter III of the Regulations which are framed under Section 16 G. It

seems that in the impugned order reference of Section 16 GG(4) has been wrongly made by the DEO and respondent No. 2 under some mistaken

notion, which will not affect the sanctity of the orders impugned, which has been passed by the respondent based on the implications of Regulation 4

which has made applicable to appointments of all the employees referred in Regulation 100.

As a matter of fact when the show cause notice was issued to the appellant on 29.11.2005, it was based on Regulation 100 only, and the reply was

submitted by appellant on 05.12.2005, it would amount that the appellant was conscious of the fact that the action is being proposed under

Regulation 100. It would be deemed to be under Section 16 G, under which the Regulations have been framed and under which the appellant has

been appointed. Besides this, the argument of the learned counsel the appellant that wrong provision has been mentioned in the impugned order will

have no bearing on the legality of the order, for reasons given below.Â

Also because the head note of section 16 G which reads as “Conditions of service of head of institutions, teachers and other employees.†The

term “other employees†used under section would be inclusive of class IV employee hence Section 16 G Regulations framed thereunder will be

applicable in the given case.  The argument of the learned counsel for the appellant is based on a misconception and it intends to take the

advantage of reference to a wrong provision, despite being conscious that the action impugned will fall within Section 16G.Â

The second argument of the learned counsel as referred above is dealt in the following manner :-

The Regulation 100 as provided under the Act of 1921 has to be read in its entirety and its object. While the first part of the Regulation 100 deals

with the power of appointment of Class-IV employees being vested with the Principal /Headmaster, but, simultaneously, Regulation 100 itself also

contemplates that for all the appointments of all class of employees referred in Regulation 100, the provisions of Regulations 4 to 8 have been made

applicable in respect of such employees. On a simple reading of Regulation 100, Regulations 4 to 8 has been made applicable. Regulation 4 of the

Regulations, as contained in Chapter 3, it provides that if any Teacher who is a relative of the member of the Management or Headmaster or Principal

shall not be appointed in the Institution. Thus, there is a specific bar in the appointment.  Here, in the present case, term ‘teacher’ in

Regulation 4 has to be read as Class-IV employee.

The affairs of the management of a recognized inter college, which is under the grant-in-aid is looked after by the elected committee of management

which is headed by the Manager, who happens to be an integral part of the management. It is not in dispute that the petitioner is the son of the then

Manager of the Committee of Management at the time when he was appointed. Hence, in accordance with Regulation 4, which has been made

applicable by Regulation 100, in relation to the appointment of Class-IV employee, the petitioner could not have been appointed in the Institution.Â

Because by virtue of impact of Regulation 100, where Regulations 4 to 8 have been applicable in relation to the Class-IV employee, the word

“Teacher†used in Regulation 4 would be read as far as the instant case is concerned as “Class-IV†employee. Consequently, the

restrictions in appointment as provided in Regulation 4 will apply in case of appellant. Hence, the contention of the petitioner /appellant that the

provisions would not be applicable as the same would be confined to its applicability to Teachers and Headmaster is not sustainable in the eyes of law

and is not accepted. Hence, the second argument as extended by learned counsel for the appellant is answered in negative against him. Besides this,

the applicability of Regulation 4 to the appointment made under Regulation 100 has an object to be attained, i.e. fairness in the appointment on various

posts in the aided Institution where exclusive power of appointment of Class-IV employee is with Principal, who functions under the direct control of

the Manager. The restrictions aim to avoid any influence being exercised by the management.Â

While dealing with the issue that the restriction as contemplated under Regulation 100 read with Regulation 4 will not apply as it pertains to its

applicability to member of the Committee of Management or Headmaster or Principal, is yet again not acceptable for the reason that under the Act,

the Manager constitutes an integral part and he is the Head of the Committee of Management, also because he is elected from amongst the elected

members of Committee of Management, for which, a Manager will have to be Member of Committee first and on election, he acquires the status of

Manager, who happens to be the appointing authority of the Teachers of the Institution since under the definition of the Teachers given under the Act,

it includes the Head Master. As the Manager being the Head of the Institution, the spirit and purpose of Regulation 4 read with Regulation 100

appears to be that there may be a possibility of the influence being exercised by the Members of the Committee of Management, in turn the Manager

also, in the appointment of the relative in the institution which is restricted under the

RegulationsÂ

The third issue which has been argued by the learned counsel for the petitioner is that prior to the passing of the order, there was an utter

disregard to the principle of natural justice. According to him, he submits that prior to passing of the order, an opportunity of hearing was required to

be given to him and an inquiry was to be conducted, failing which, the entire action would be in derogation of principle of natural justice. For the said

purpose, he places reliance on Regulation 26 of the Regulations which reads as underÂ

“26. (1) The services of a permanent employees may be terminated by giving him three month’s notice or three month’s pay in lieu

thereof, on the ground of the abolition of the post which the employees is holding. The abolition may be due to one of the following reasons :

(a) Retrenchment decided upon for reasons of financial stringency.Â

(b) Abolition of a subject.

(c) Abolition of section or class.

(2)Â For the purpose of computing the period of notice mentioned in clause (1) or for determining the amount to be paid in lieu thereof the period of

summer vacation shall be excluded.â€​

The argument as extended by the learned counsel for the petitioner / appellant is not acceptable for the reason that three months notice as

contemplated under Regulation 26 (1) will always be read in correlation to the contingency and circumstances which are contemplated in Regulation

26 itself which would result into dispensation of services of an employee. Â

In the given set of circumstances of the present case, none of the elements of Regulation 26 (1) is available to the appellant to support his

argument that three months notice was required to be given to him, because of non fulfillment of any of the conditions of Regulation 26 (1). Â

As far as the facts of the present case are concerned, once the petitioner does not deny that he was related to the then Manager of the Institution

at the time when his appointment was made on 27th April, 2002, in that eventuality, on simple reading of Regulation 100 read with Regulation 4, it

leads to a logical inference that the appointment of the appellant was dehors to the Rules right from its inception. Even if, an opportunity of hearing

was provided to the appellant, it would not have served any purpose leading in to invoke the “doctrine of futilityâ€, because the resultant effect

would be the same, holding thereof that the appointment itself was contrary to the Regulations framed under the Act, more particularly, when the

appellant admits the facts.Â

This argument has to be looked into from another view point. As per observation made above and on the reading of Regulation 4 read with

Regulation 100, once the appointment itself was contrary to the Regulations, it suffered from apparent legal vice. The effect of setting aside of the

order impugned by this Court on the ground of violation of natural justice principle, while exercising its extra ordinary jurisdiction under Article 226 of

the Constitution of India or in the appellate jurisdiction in continuity thereto, would result in revival of an illegal order and, as such, the extra ordinary

jurisdiction of this Court under Article 226 of the Constitution of India ought not to be invoked and is not available in those cases where the

consequential effect of setting aside of the impugned order would result in revival of an illegal order. The Hon’ble Apex Court in the case of

Mohd. Swalleh and others Vs. IIIrd Addl. District Judge, Meerut and another, reported in ARC 1987 (2) p/513, has held in paragraph 7 as under :-

“7. It was contended before the High Court that no appeal lays from the decision of the Prescribed Authority to the District Judge. The High

Court accepted this contention. The High Court finally held that though the appeal did not lie before the District Judge, but as the order of the

Prescribed Authority was invalid it was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of

the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District

Judge in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under

Article 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper.Â

The High Court itself could have set it aside. Therefore, in the facts and circumstances of the case justice has been done though, as mentioned

hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High

Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception

can be taken. As mentioned hereinbefore, justice had been done and as the improper order of the Prescribed Authority has been set aside, no

objection can be taken.â€​Â

An identical view has been expressed by the Hon’ble Apex Court in the case as of Maharaja Chintamani Saran Nath Shahdeo Vs. State of

Bihar and others reported (1999) 8 SCC 16. Paragraph 38 of the said judgment reads as under :-Â

“38. For what has been stated above we hold that the order of the learned Member of Board of Revenue directing action to be taken for refund of

the excess compensation was valid and proper though he had no jurisdiction to pass the order. In the event it is set aside it would amount to reviving

an invalid order of payment of excess compensation to the appellant.â€​

It is now settled that when the consequential effect of setting aside an order by the High Court, if it results into revival of an illegality or an illegal

order bad in the eyes of law, the High Court would not exercise its extra ordinary jurisdiction as it results into revival of an illegality. Hence, no fault

could be pointed out in the order impugned as addressed by the learned counsel for the petitioner / appellant in the light of the fact that the order was

in violation of principal of natural justice.Â

The learned counsel for the appellant in support of his contention has placed reliance in the case of Hira Lal Gaur Vs. The District Inspector of

Schools, Azamgarh and others, reported in [1981 UPLBEC 226]. He drew the attention of this Court to para 17 of the said judgment. Para 17 of

the said judgment reads as under :-Â

“Regulation 25 deals with cases of termination of services of temporary employees other than those covered by Regulation 24. It is, in our

opinion, Regulation 25 that will apply to the petitioner’s case. The notice impugned was issued to the petitioner on 21st January, 1980

terminating his services on the next day that is 22nd January, 1980. The petitioner was neither given one month’s notice before the termination

of his services nor was he given or offered one month’s pay in lieu thereof. A Division Bench of this Court in Ram Phal Singh Vs. Chandra

Dutt Sharma, Special Appeal No. 174 of 1975 decided on 11th August, 1975 held that giving of one month’s notice or in the alternative one

month’s pay in lieu thereof is a condition precedent to the termination of the services of a temporary employee under Regulation 25 and in the

absence of this condition precedent having been complied with, a notice terminating the services of an employee would be invalid and contrary to

law. The decision in Ram Phal Singh’s case is binding on us.â€​

The aforesaid proposition was dealing with the provision contained in the Regulation 25 framed under Act of 1921. The same would not be

attracted for the reason that on reading of Regulation 25, it was exclusively contemplating one month’s prior notice to a temporary employee.Â

Since in the instant case, it is the admitted case of the appellant himself that he was a permanent employee, the provisions of regulation 25 will not

apply and the interpretation assigned to Regulation 25 in the judgment as referred above (supra), will not be attracted. Â

Another judgment in which reliance has been placed is in the case of Kanti Prasad Paliwal Vs. State of U.P. and others reported in [1981

UPLBEC 422]. In the said case, the Division Bench of Allahabad High Court was dealing with the impact of Chapter III Regulation 4 read with

Regulation 24 with regard to prohibition of termination of services of a Teacher when he was a cousin of the Manager of the College.  Para 7 of

the said judgment reads as under :-

“7. The case of respondent taken in the counter affidavit was that the petitioner was the cousin of the then Manager of Gopi Ram Paliwal

Intermediate College Aligarh. However, the fact remains that the assertion made by the petitioner that his services were terminated without giving

any opportunity to him either by the Manager or by the District Inspector of Schools has not been controverted. Since the impugned order has

resulted in the termination of the petitioner, it was necessary for the authorities to have given the petitioner an opportunity before the impugned order

could be passed.â€​

Since, the domain of appointment, the process and service conditions of Teacher or of Class-IV employees are independently dealt under the Act

and are altogether distinct, it will not be attracted and it would result in revival of an illegal appointment and order passed dehors the Rule, this Court

finds that there is no apparent anomaly in the impugned order passed by the Authority in the light of the fact that the appellant was not heard.Â

The argument of learned counsel for the appellant to the effect that he was not heard before taking the impugned action, is not correct and is

contrary to records, for the reasons as assigned above and also because of the fact that on scrutiny of the impugned order, as a matter of fact, the

DEO while complying with the order of Lok Ayukta dated 11th August, 2005, had issued a show cause notice No. 4303133/2005-06 dated 29th

November, 2005 to the appellant as well as to the Principal of the Institution. Both of them were called upon by the DEO to file their respective

reply by 5th December, 2005.  The finding which has been recorded is that the appellant did appear before the DEO on 5th December, 2005 and

he was heard. He has stated that his appointment was made after due process of selection and thus, there was no error in his appointment. This

finding recorded in the impugned order itself shows that the appellant was heard. Hence, the argument of the learned counsel for the appellant from

this aspect is not acceptable by us.Â

The fourth argument, which has been extended by the learned counsel for the appellant is that irrespective of the admitted fact that the appellant

happens to be the son of the Manger of the Institution, it will not have any bearing so far it relates to the sanctity of his appointment as Class-IV

employee is concerned for the reason that according to his own argument, as per Regulation 100 framed under the Act, exclusive power of

appointment has been vested with the Principal and in the process of appointment of Class-IV employee, the Manager has got no role to play. Â

The argument as extended by the learned counsel for the appellant may not be very attractive for the reason that under the Intermediate

Education Act, the management of the recognized aided institution is under the effective and pervasive control of the elected Committee of

Management which constitutes of elected members and from amongst elected members of the Committee of Management, they elect the Manager by

way of election. The Manager, thus, elected is the Head of the administrative set up of aided institution under whom the Principal performs his

official duties. In such administrative set up, it cannot be ruled out that the Manager under whom the Principal works, would not have any influential

effect on the functioning of the Principal also because he functions as appointing authority of Principal. Hence, the argument from the said view

point is not accepted as there is a possibility of the appointment being tutored by the Manager. Â

Another limb of argument which has been posed by the learned counsel for the appellant, which is the fifth argument in chronology, is that it

cannot be said that the appointment of the appellant as Class-IV employee was based upon fraud or concealment of fact. In this regard, he submits

that the entire facts about his appointment was divulged by the letter dated 22nd February, 2002, which was sent by the Manger to the DEO, whereby,

the fact of appellant being son of the Manager was already disclosed before this appointment was made. It may be that the said information might

have been given to the DEO and it may be inferred from the said fact that there was no concealment or fraud, which were played by the appellant

in procuring the appointment as Class-IV employee, but, the fact remains that he admits the relationship with the Manager and his appointment as

Class-IV employee.  Even if, his relationship was divulged to the DEO prior to his appointment, it will not provide any legality to it once it happens

to be in violation of the provisions contained under Regulation 100 read with Regulation 4 of the Regulations framed under the Act of 1921. Hence,

the appointment was void and bad right from its inception. Â

The sixth argument, which has been extended by the learned counsel for the appellant is out of context to the writ petition, for the reason that it is

neither pleaded nor argued nor pressed nor it finds reference in the impugned order to the effect that the respondents are calling upon the appellant to

deposit the salary w.e.f. 29th June, 2012 till 1st February, 2016, till he worked with the Institution.  As would revealed from the record that when

the appellant challenged the impugned orders by filing the present writ petition, there was interim order granted on 23rd February, 2006, by virtue of

which, the appellant continued to work as Class-IV employee and was accordingly remunerated for the services rendered. Ultimately, the writ

petition came up for final adjudication and same was dismissed by the Writ Court, vide impugned judgment dated 29th June, 2012. It seems that and

could also be inferred that after the dismissal of the Writ Petition on 29th June, 2012, it was not disclosed and brought to the knowledge of the

Management or the Principal, as a result of which, the appellant admittedly continued to work from 29th June, 2012 till 1st February, 2016, i.e. the

period when his writ petition already stood dismissed and resulting into revival of his order of cancellation of his appointment.Â

During the course of argument, the learned counsel for the appellant has placed on record the order passed by the Chief Education Officer 1st

February, 2016, which was on the basis of the resolution passed by the Committee of Management, whereby, the appellant was called upon to remit

back the salary received by him from 29th June, 2012 to 1st February, 2016 alongwith interest.   Â

We cannot take any cognizance against the said letter, for the reason being that it was beyond the case as pleaded and pressed by the appellant

before the Writ Court. In the Appellate jurisdiction, we cannot widen the scope of the Writ Petition which was not there before the learned Single

Judge.Â

The Hon’ble Apex Court in the case of Anup Kumar Kundu Vs. Sudip Charan Chakraborty and other reported in (2006) 6 SCC 666, has held

as under :-

“6. Learned Counsel for the appellant submitted that the High Court ought not to have gone into any issue which did not form the subject matter of

challenge before the Tribunal. The High Court accepted this position that there was no challenge before the Tribunal so far as appellant is concerned.

But, it proceeded to examine the issue as if it arose out of the Tribunal's order which was impugned before it. The High Court is clearly wrong in

holding that the appellant was continuing illegally.

A bare perusal of the High Court's order makes the position clear that there was no dispute about non challenge to the appointment of the

appellant as a Head of the Department as well as Professor. The grievance made in the interim application cannot be a substitute for a definite

challenge to the appointment in the writ petition. In any event, after the disposal of the matter by the Tribunal, the High Court was not justified in

holding that the appellant's appointment was illegal. The subject matter of controversy and the area of dispute were entirely different. Though, learned

Counsel for respondent No. 1 submitted that in fact challenge was made to the appointment of the present appellant who was respondent No. 10, but

in view of the categorical finding recorded by the Tribunal, the High Court concluded that there was no such challenge made before the Tribunal. The

High Court therefore was not justified in considering a new case which was not the case of the parties before the Tribunal. The High Court's

judgment therefore deserves to be set aside, which we direct.

However, our setting aside the order of the High Court shall not be considered to be a bar for any party aggrieved by the order of the authorities to

seek appropriate remedy. We do not express any opinion about the maintainability of the grievance on merits. Since the appellant is continuing on the

basis of an interim order it shall be open to him to move the authorities about justifiability of his continuance. This direction is given considering the fact

that the appellant as well as the State Government have accepted the position that the Government's order which was quashed did not have any

effect, because of certain other earlier orders. We express no opinion in this regard also. In view of the background facts noted above, the appeal is

allowed in the aforesaid extent. No costs.Â

Yet again, the Hon’ble Apex Court in the case of Bharat Amratlal Kothari and another Vs. Dosukhan Samadkhan Sindhi and others reported

in (2010) 1 SCC 234, has held as under :-

“29. The approach of the High Court in granting relief not prayed for cannot be approved by this Court. Every petition under Article 226 of the

Constitution must contain a relief clause. Whenever the petitioner is entitled or is claiming more than one relief, he must pray for all the reliefs. Under

the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the court, to sue for any particular relief which he is

entitled to get, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished.Â

Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in

the Civil Procedure Code will apply even to writ petitions. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the court.

Normally, the court will grant only those reliefs specifically prayed by the petitioner. Though the court has very vide discretion in granting relief, the

court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the

petitioner.

Though a High Court has power to mould reliefs to meet the requirements of each case, that does not mean that the draftsman of a writ petition

should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the court.

Hence, in such circumstances, without expressing anything on the merit pertaining to the propriety of the refund of salary as sought by the

respondents, this Court leaves it open for the appellant to have recourse, as permissible under law before any competent forum, if so advised.Â

Lastly, the learned counsel for the appellant submits that some compassion is to be shown to the appellant as after his appointment till the date of

taking of the impugned action, he has attained the age of 54 years and has got the liability of the family to be taken care of. Under law, when it

comes to its enforceability, it has got no scope of compassion to be exercised by the Constitutional Courts which are bound to uphold law. When an

action itself is contrary and dehors the law, as existing at that point of time and by showing compassion, this court cannot permit the illegality to exist

and be carried out. Hence, this argument does not hold water and deserves to be turned down. Â

For the reasons assigned above, we do not feel that the arguments as extended by the learned counsel for the appellant could be accepted and, as

such, we do not find any error apparent in the impugned orders under challenge before the Writ Court or in the impugned judgment, passed by the

learned Single Judge, which is under challenge in the present Special Appeal. Â

Thus, the present Special Appeal fails and is dismissed and the judgment passed by the learned Single Judge is affirmed. No order as to

costs.Â