# Rameshwar Prasad Shukla v. The District Inspector of School and another

- **Citation:** (2012) 1 ILRA 21
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-25
- **Case number:** Special Appeal No. 176 of 2012
- **Bench:** Syed Rafat Alam, C. J. Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rameshwar-prasad-shukla-v-the-district-inspector-of-school-and-another-42101
- **Pages:** 4

## Headnote

Constitution of India-Article, 226-Writ
Petition-claiming
salary
from
state
exchequer-without
impleading
State
Government-petition
itself
not
maintainable-working on basis of interim
order-for
considerable
period-after
dismissal of petition being merged with
final judgment-equity can not prevail
over statutory provision-view taken by
Learned Single Judge-not suffer from
any error.

Held: Para 8

In view of above, we are of the view that
since the petitioner-appellant filed the
writ petition claiming salary from the
State exchequer, therefore, he ought to
have impleaded the State as a party and
in the absence of the State as a party in
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the writ petition, the writ petition itself
was not maintainable.

We, therefore, do not find any reason to
differ with the view taken by the learned
Single Judge. The appeal is, accordingly,
dismissed.
Case law discussed:
(1997) 6 SCC 574; (1994) 2 SCC 718; (2007) 1
AWC 507 (SC); AIR 1977 SC 1701;AIR 2003
SC 1805

## Text

1 All] Rameshwar Prasad Shukla V. The District Inspector of School and another
21

27. The aforesaid admitted facts
clearly establish that the family was not in
indigent circumstances as the widow of
the deceased has refused compassionate
appointment for herself and instead
desires appointment to be given to the
brother of the deceased for she was
compelled to do so by the circumstances
as her children were minors at that time.
She could have accepted the appointment
if the family was in dire financial crisis.
Even
though
the
compassionate
appointment was not accepted by the
mother of the applicant and she has been
able to raise her children and to give good
education.

28. It may also be noted that the
applicant did not submit any application
for condonation of delay. The power to
condone
delay
vests
in
the
State
Government.

29. There is also no provisions of
keeping vacancy reserved for the minors
of dependents of government servants
who
died
in
harness.
The
51%
appointments
under
compassionate
appointments is to be made in the existing
vacancies for minors in each year. If
reservation of vacancies for minors in
such manner is permitted, many a
deserving dependents of government
servants who have died in harness and
living in indigent circumstances would be
deprived of the benefit of dependents U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules, 1974. The Rule which is a
beneficial piece of legislation would loose
its beneficial part and turn into an
unworkable Rule.

30. For all the reasons stated above,
the respondents cannot be directed to give
compassionate
appointment
to
the
appellant after the death of deceased
employee on 2.8.89 and on attaining the
majority on 28.2.2001 i.e. more than 22
years.

31. The writ petition is accordingly,
dismissed. No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2012

BEFORE
THE HON'BLE SYED RAFAT ALAM,C. J.
THE HON'BLE RAN VIJAI SINGH,J.

Special Appeal No. 176 of 2012

Rameshwar Prasad Shukla ...Petitioner
Versus
The District Inspector of School and
another

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Srivastava

Counsel for the Respondents:
C.S.C.

Constitution of India-Article, 226-Writ
Petition-claiming
salary
from
state
exchequer-without
impleading
State
Government-petition
itself
not
maintainable-working on basis of interim
order-for
considerable
period-after
dismissal of petition being merged with
final judgment-equity can not prevail
over statutory provision-view taken by
Learned Single Judge-not suffer from
any error.

Held: Para 8

In view of above, we are of the view that
since the petitioner-appellant filed the
writ petition claiming salary from the
State exchequer, therefore, he ought to
have impleaded the State as a party and
in the absence of the State as a party in
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the writ petition, the writ petition itself
was not maintainable.

We, therefore, do not find any reason to
differ with the view taken by the learned
Single Judge. The appeal is, accordingly,
dismissed.
Case law discussed:
(1997) 6 SCC 574; (1994) 2 SCC 718; (2007) 1
AWC 507 (SC); AIR 1977 SC 1701;AIR 2003
SC 1805

(Delivered by Hon'ble Syed Rafat Alam,C. J.)

1. This intra-court has been
preferred against the judgment and order
dated 16.12.2011 passed by the learned
Single Judge in Writ Petition No. 18190
of
1987 by
which
the
appellant's
appointment was found contrary to the
provisions of law and the writ petition
was dismissed.

2. Heard learned counsel for the
appellant and also perused the order of the
learned Single Judge impugned in this
appeal.

3. We are of the view that the order
of the learned Single Judge does not
suffer from any error and, therefore, we
have no reason to disagree with the view
taken by him. The law in this regard is
well settled. The Hon'ble Supreme Court
in State of Rajasthan Vs. Hitendra
Kumar Bhatt, (1997) 6 SCC 574 has
already held that an interim order passed
in a pending proceeding merges into final
order and, therefore, even if on the
strength of the interim order passed in the
writ petition, the appellant continued in
service, that does not confer any right to
claim continuance in service on the
ground that a sympathetic view ought to
have been taken since the appellant
continued for a long period under the
interim order of this Court.

4. It is well settled that justice has to
be dispensed in accordance with law and
equity and sympathy shall have no place
or overriding effect over the statutory
provisions. The Apex Court in the case of
Life Insurance Corporation of India
Vs.
Asha
Ramchandra
Ambedkar
(Mrs.) & Anr., (1994) 2 SCC 718, has
held as under:-

"... Justice according to law is a
principle as old as the hills. The courts are
to administer law as they find it, however,
inconvenient it may be.

...

...

...

The Courts should endeavour to find
out whether a particular case which
sympathetic considerations are to be
weighed falls within the scope of law.
Disregardful of law, however, hard the
case may be, it should never be done..."

5. In the case of Raghunath Rai
Bareja Vs. Punjab National Bank,
(2007) 1 AWC 507 (SC), the Apex Court
has observed:-

"...It is well settled that when there is
a conflict between law and equity, it is the
law which has to prevail, in accordance
with Latin maxim 'dura lex sed lex',
which means 'the law is hard, but it is the
law'. Equity can only supplement the law
but it cannot supplant or override it.

... what is administered in the Courts
is
justice
according
to
law,
and
considerations of fair play and equity
however they may be, must yield to clear
and express provision of the law."

6. The matter may be examined
from another angle also. The petitioner-
1 All] Rameshwar Prasad Shukla V. The District Inspector of School and another
23
appellant, claiming himself to be the
Assistant Teacher in C.T. Grade in a
recognized aided institution, has filed the
writ petition for payment of salary. The
salary of teachers and other employees of
a recognized aided institution are payable
under the provisions of the U.P. High
School
and
Intermediate
Colleges
(Payment of Salaries of Teachers and
other Employees) Act, 1971. Under the
aforesaid Act, it is the responsibility of
the State Government to pay the salary of
the teachers and employees of the aided
recognised institution. The petitionerappellant, without impleading the State
Government, filed the writ petition. It is
well settled that if an employee files a
writ petition claiming salary from the
State exchequer, then the State being a
necessary party has to be impleaded and
in the absence of impleadment of the
State, no direction can be issued against
the State and the writ petition would not
be maintainable. The Apex Court in the
case of Ranjeet Mal Vs. General
Manager,
Northern
Railway,
New
Delhi & Anr., AIR 1977 SC 1701, has
held as under:-

"It cannot be disputed that the
appellant was a servant of the Union. It is
equally indisputable that any order of
removal is removal from service of the
Union. The appellant challenged that
order. Any order which can be passed by
any Court would have to be enforced
against the Union. The General Manager
or any other authority acting in the
Railway administration is as much a
servant of the Union as the appellant was
in the present case.

The Union of India represents the
Railway
administration.
The
Union
carries administration through different
servants. These servants all represent the
Union in regard to activities whether in
the matter of appointment or in the matter
of removal. It cannot be denied that any
order which will be passed on an
application under Article 226 which will
have the effect of setting aside the
removal will fasten liability on the Union
of India, and not on any servant of the
Union. Therefore, from all points of view,
the Union of India was rightly held by the
High Court to be a necessary party. The
petition was rightly rejected by the High
Court."

7. A similar question with regard to
impleading the State came up for
consideration before the Apex Court in
Chief
Conservator
of
Forests,
Government of A.P. Vs. Collector &
Ors., AIR 2003 SC 1805, wherein it was
held that in view of Article 200 of the
Constitution of India, the Government of
India and also the Government of State
may sue or be sued by the name of Union
of India or by the name of State
respectively. The Apex Court had also
considered the provisions of Section 79 of
the Code of Civil Procedure and Rule 1 of
Order 27 C.P.C. and held as under:-

"A plain reading of Section 79 shows
that in a suit by or against the
Government, the authority to be named as
plaintiff or defendant, as the case may be,
in the case of the Central Government, the
Union of India and in the case of the State
Government, the State, which is suing or
is being sued.

Order 27 of Rule 1, as mentioned
above, deals with suits by or against the
Government or by officers in their official
capacity. Rule 1 of Order 27 C.P.C. says
that in any suit by or against the
24 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Government, the plaint or the written
statement shall be signed by such person
as the Government may by general or
special order appoint in that behalf and
shall be verified by any person whom the
Government may so appoint."

8. In view of above, we are of the
view that since the petitioner-appellant
filed the writ petition claiming salary
from the State exchequer, therefore, he
ought to have impleaded the State as a
party and in the absence of the State as a
party in the writ petition, the writ petition
itself was not maintainable.

We, therefore, do not find any reason
to differ with the view taken by the learned
Single Judge. The appeal is, accordingly,
dismissed.

9. At this stage, learned counsel for
the appellant submits that the amount of
G.P.F. and other dues payable to the
appellant
are
still
lying
with
the
Department. He further submits that there
is
apprehension
of initiation
of a
proceeding for recovery of the amount of
salary already paid by the respondents.
However, the aforesaid apprehension has
not been substantiated by bringing any
material on record. Besides that, in the
event, if such proceedings are initiated,
that will be a fresh cause of action and it
will always be open to the appellant to
approach
the
appropriate
Court
challenging such action/order but that
cannot be a basis to interfere with the
order of the learned Single Judge.

10. The appeal, therefore, being
without merit, is dismissed.
---------

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2012

BEFORE
THE HON'BLE ASHOK SRIVASTAVA,J.

Criminal Revision No. - 260 of 2012

Kailash Singh

 ...Petitioner
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri Pankaj Kumar Mishra

Counsel for the Respondents:
Pankaj Kumar Mishra
Govt. Advocate

Criminal Revision-against order taking
cognizance-without
going
through
case
diary-expression
"cognizance"
means "became aware" or to take
notice judicially-in view of law laid
down by Apex Court in Dy. Chief
Controller Export-import case-a detail
reasoned
discussion
not
requiredrevision dismissed.

Held: Para 4

In the instant case, fact wise, law as
laid down in Dy. Chief Controller of
Imports and Exports (supra) squarely
applies. From perusal of the order
impugned herein it does not transpire
that before taking cognizance of the
case and passing an order thereon the
Magistrate had not seen the case diary
or the charge sheet. It is needless to
say that while taking cognizance of an
offence no detailed order is required
to be passed by the Magistrate.
Case law discussed:
2011-ADJ-5-690; 2009 AIR Jhar-1-355;
2003 (46) ACC 686 SC; 2000 (40) ACC 441
SC; 2011 (73) ACC 750 (Alld./Lko.); (2008)
2 SCC 492