JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Ishteyaque Ahmed, the learned counsel appearing on behalf of the petitioner, Mr. Anil Kumar, the learned Senior counsel assisted by Mrs. Richa Sanchita, learned vice-counsel appearing on behalf of the respondent-JAC, Mr. Ganesh Pathak, the learned counsel for the respondent nos. 4 and 5 and Mr. Jagdish, the learned counsel appearing on behalf of the respondent-State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioner has preferred this writ petition for a direction upon the respondent authorities for approval to his appointment as Assistant Teacher (Inter trained) in Madarsa Ezazul Uloom at village Sursura Nawadih under district-Deoghar and for payment of his salary since the date of joining of service i.e. 18.02.2016 and for quashing of order dated 24.11.2016 contained in Annexure-6/1. 4. It is the case of the petitioner that Madrasa Ezazul Uloom, Sursura Nawadih, Deoghar has published one advertisement in daily news paper on 01.01.2016 and 05.01.2016. The said advertisement was on the basis of the order of the respondent no. 4 and accordingly post of Madarsa Assistant Teacher was advertised. Admit cards were issued and accordingly, Vidyalaya (Madarsa) Managing Committee conducted the examination on 11.02.2016. On 12.02.2016 results were published and the name of the petitioner has appeared at Serial No. 1. The merit list was published which is contained in Annexure 3/1 of the writ petition. The appointment letter was issued in favour of the petitioner on 15.02.2016 by respondent no. 4 and therefore the petitioner joined his service on 18.02.2016 after that respondent no. 4 on 14.09.2016 sent a letter to the Jharkhand Academic Council for approval of the appointment of the petitioner but the respondent no. 2 has objected to approve the appointment of the petitioner. The Jharkhand Academic Council has also given the sanction by way of letter dated 04.09.2015 as contained in Annexure-A to the counter affidavit filed on behalf of the respondent no. 2. 5. Mr. 2 has objected to approve the appointment of the petitioner. The Jharkhand Academic Council has also given the sanction by way of letter dated 04.09.2015 as contained in Annexure-A to the counter affidavit filed on behalf of the respondent no. 2. 5. Mr. Ishiteyaque Ahmed, the learned counsel for the petitioner submits that after receiving the letter of Jharkhand Academic Council dated 24.11.2016, the Secretary, Vidyalya Committee through letter dated 21.02.2017 clarified the appointment process in detail, but even after that Jharkhand Academic Council has not approved the appointment of the petitioner. He submits that appointment process has not been completed within the period as stated in the permission letter dated 04.09.2015 on the contrary the appointment process has been completed in 8 months and 15 days from the date of publication of Advertisement. He further submits that petitioner has no other efficacious remedy and that is why he moved before the Hon’ble Court by way of writ jurisdiction. 6. Mr. Anil Kumar, the learned Senior counsel appearing on behalf of the respondent-JAC, at the outset, draws the attention of the Court to page-14 of the counter affidavit which is a letter dated 04.09.2015 whereby the approval of the appointment of the petitioner were negated relying on clause-III of the letter by which the process of appointment was initiated which speaks of completion of the process within 45 days. He submits that this order has not been challenged and in that view of the matter, no relief can be extended to the petitioners. The learned senior counsel further argues that the letter dated 25.04.2017 is administrative letter whereby appointment process has been directed to be initiated cannot be overlooked on the ground that it is mandatory or not. He submits that in view of this letter, the entire exercise was need to be completed in terms and conditions stipulated in the said letter. 7. Mr. Ganesh Pathak, the learned counsel appearing on behalf of the respondent nos.4 and 5 submits that the respondent nos.4 & 5 made all efforts to make the selection process within the stipulated time and all the guidelines have been followed in terms of the letter dated 04.09.2015. The advertisement was published on 01.01.2016 and 05.01.2016 and thereafter a gap of 21 days was maintained for the candidates to apply as per clause no. 2 of the permission letter issued by the respondent no. The advertisement was published on 01.01.2016 and 05.01.2016 and thereafter a gap of 21 days was maintained for the candidates to apply as per clause no. 2 of the permission letter issued by the respondent no. 2 Thereafter, Vidyalaya Management Committee completed appointment process within 45 days as condition made in Clause-3 of the letter dated 04.09.2015 and the approval is the next phase. He further submits that letter dated 04.09.2015 does not disclose that the approval of appointment would also include in appointment process. The learned counsel for the respondent State accepted that the State has already given the approval. Replying to the submissions of learned counsel appearing on behalf of the respondent-JAC, Mr. Ishteyaque Ahmed, the learned counsel for the petitioner submits that this Court has ample powers under Article 226 of the Constitution of India to grant relief if the same is not disputed. 8. He referred to the judgment rendered in the case of ESI Corporation vs. Jardine Henderson Staff Assn. (2006) 6 SCC 581 . Paragraph No. 63 of the said judgment is quoted herein-below: “63. The High Court under Article 226 and this Court under Article 136 read with Article 142 of the Constitution of India have the power to mould the relief in the facts of the case.” 9. He further draws the attention of the Court to the judgment of the Hon’ble Patna High Court in the case of Brij Bhukan Kalwar and Others vs. S.D.O. Siwan and Others, AIR 1955 Patna 1 (Special Bench). Paragraph No. 5 of the said judgment is quoted herein-below: “5. But, before I proceed to determine what orders should be passed in each of these cases, I have to pronounce upon the validity or otherwise of the Act or that part of the Act which is impugned. “An unconstitutional Act is not law, it confers no rights, it imposes no duties, it affords no protection, it creates no office it is, in legal contemplation, as inoperative as though it had never been passed.” Field J. in ‘Norton v. Shelby County’ (1885) 118 US 425 (A). “An unconstitutional Act is not law, it confers no rights, it imposes no duties, it affords no protection, it creates no office it is, in legal contemplation, as inoperative as though it had never been passed.” Field J. in ‘Norton v. Shelby County’ (1885) 118 US 425 (A). Willoughby has quoted the following passage from the judgment of the Court of West Virginia in Shepherd vs. Wheeling, 30 W Va 479 (B) and has observed that the doctrine that the judicial declaration of the unconstitutionality of a statute has not the effect of a veto or nullification or abrogation of the statute so as, in effect, to strike it from the statute books, is excellently stated in this judgment: “The Court, does not annul or repeal the statute 6 if it finds it in conflict with the Constitution. It simply refuses to recognize it, and determines the rights of the parties just as if such statute had no application. The Court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only, and there is no judgment against the statute. The opinion or reasons of the Court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute book; it does not repeal the statute. The parties to that suit are concluded by the judgment, but no one else is bound. A new litigant may bring a new suit, based on the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on only as a precedent. This constitutes the reason and basis of the fundamental rule that a Court will never pass upon the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the case before it.” No particular points have been formulated for determination by this Special Bench, and what we have to determine is whether any of these applications is fit to succeed, and, certainly, if the applications are to succeed, at least certain portions of the statute will have to be declared unconstitutional and void. Some of these applications have been contested not only on behalf of the State but also on behalf of certain private parties, and, in fact, Mr. Some of these applications have been contested not only on behalf of the State but also on behalf of certain private parties, and, in fact, Mr. Amin Ahmad who has appeared for the opposite party in Miscellaneous Judicial Case No. 173 of 1953 has defended this Act much more strongly than the learned Government Advocate. He was supported to some extent by the learned Advocate-General who gave the final reply on behalf of the State. We shall, therefore, have to give our judicial pronouncement against the statute only in so far as it is necessary for the determination of the rights claimed by the petitioners, and in cases in which there is contest on behalf of private parties, we will have to give the same amount of consideration and weight to the submissions made on their behalf which we are bound to give to the submissions made on behalf of the State.” 10. He further submits that clause-3 of the letter dated 04.09.2015 is not speaking that if the process is not completed within 45 days, no approval will be given by the respondent-JAC. 11. In the facts and circumstances of the arguments and the materials on record and looking into the clause-3, it transpires that the letter dated 04.09.2015 whereby the process of advertisement was asked to be initiated by the respondent-JAC, the clause-3, 45 days rider has been provided for completion of the process of appointment. On the query from the Court, the learned counsel for the respondent-JAC fairly submits that there is no statutory provision with regard to 45 days. The learned counsel for the respondent-JAC admitted this position that this is an administrative order. The learned counsel for the respondent nos.4 and 5 disclosed that how 7 months delay has taken place in completion of that process. The 45 days rider cannot be said to be a mandatory one. As sufficient explanation has been given in the counter affidavit by the respondent nos. 4 and 5 about 7 months delay in the selection process, the selection process has already taken place and the entire exercise cannot be allowed to be annulled only on the ground that it has been completed in 8 months and 15 days. The 45 days rider is not statutory and not mandatory. 4 and 5 about 7 months delay in the selection process, the selection process has already taken place and the entire exercise cannot be allowed to be annulled only on the ground that it has been completed in 8 months and 15 days. The 45 days rider is not statutory and not mandatory. The petitioner was already provided the appointment letter and that is why the petitioners have approached this Court in the nature of mandamus. The letter dated 24.11.2016 as contained in Annexure-6/1 to the writ petition on which much reliance has been placed by the learned counsel for the respondent-JAC has not been communicated to the petitioner and that is why it has not been challenged by the petitioner. The letter dated 24.11.2016 has been passed on the strength of clause-3 of letter dated 04.09.2015. The Court finds that there is no mention of the fact that if the process has not completed within 45 days, approval cannot be provided. The right accrued in favour of the petitioners cannot be allowed to be frustrated for 7 months delay and that too in absence of any statutory provision of completion of procedure within 45 days. It is an admitted position that rider of 45 days is administrative in nature. This Court finds that this is a fit case of only a procedural irregularities which can be regularized and in view of the completion of the exercise that too, by way of delay of seven months, the action of the respondent-JAC is not justified. This Court finds that this is a fit case to apply the ratio of judgment rendered by the Hon'ble Supreme Court in the case of ESI Corporation vs. Jardine Henderson Staff Assn. and Brij Bhukan Kalwar and Others vs. S.D.O. Siwan and Others (supra) and accordingly, the writ petition [W.P. (S) No. 6630 of 2017] stands allowed. 12. The respondent-JAC is directed to accrue the approval in favour of the petitioner as the appointment letters have already been issued and the Government has already approved and merely on the ground of 7 months delay, in absence of any statutory provision and mandatory in nature, the same cannot be denied. 12. The respondent-JAC is directed to accrue the approval in favour of the petitioner as the appointment letters have already been issued and the Government has already approved and merely on the ground of 7 months delay, in absence of any statutory provision and mandatory in nature, the same cannot be denied. In view of the fact that the clause-3 is not statutory in nature and the letter dated 24.11.2016 has been issued on the basis of clause-3, the said letter is not coming in the way of the Court to pass any order in the nature of mandamus. 13. With the aforesaid observation and direction, the instant writ petition stands allowed and disposed of. 14. I.A. if any, also stands disposed of.