# State of U.P. and another v. Krishnendra Gaur and another

- **Citation:** (2008) 3 ILRA 896
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-28
- **Case number:** Special Appeal No. 212 of 2007
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-another-v-krishnendra-gaur-and-another-41261
- **Pages:** 5

## Headnote

Sri. R.R. Singh
Sri. M.K. Kushwaha
Sri. B.B. Paul
Mrs. Mahima Kushwaha

U.P.
Secondary
Education
Services
Selection
Board
Act
1982-Ad-hoc
appointment on L.T. Grade post-short
term
vacancy-advertisement
in
one
newspapers
instead
of
two-DIOS
disapproved the appointment keeping in
view of Radha Raizada case-held-properview taken by learned single Judge
about requirement of publication in two
newspapers is mere technicality-heldnot proper-however the salary for the
period of actual working be given.

Held: Para 12 & 13

In the facts of the present case, it is
admitted on record that advertisement
has
been
published
in
only
one
newspaper.
Therefore,
we
have
no
hesitation to record that there has been
violation of law as declared by the Full
Bench of this Court, in respect of ad-hoc
appointment against short term vacancy
as claimed by the petitioner. Further we
are of the opinion that the District
Inspector of Schools was justified in
refusing to accord financial approval to
the ad hoc appointment of the petitioner
on said ground, inasmuch as, as stated
above, is in strict conformity with the
law laid down by the Full Bench of this
Court.

The Hon'ble Single Judge was not
justified in upsetting the said order
passed by the District Inspector of
Schools
by
observing
that
nonpublication of the vacancy for ad hoc
appointment against short term vacancy
in two newspapers was only technical in
nature.
Case law discussed:
(1994) 3 UPLBEC 1551; Writ Petition No.
51370 of 2005 decided on 11.06.2007.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2008
896

18. For the reasons stated above, the
writ petition is partly allowed with
aforesaid modification in the award. No
order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 212 of 2007

State of U.P. and another
...Appellants
Versus
Krishnendra Gaur and another

...Respondents/Petitioners

Counsel for the Appellants:
S.C.

Counsel for the Respondents:
Sri. R.R. Singh
Sri. M.K. Kushwaha
Sri. B.B. Paul
Mrs. Mahima Kushwaha

U.P.
Secondary
Education
Services
Selection
Board
Act
1982-Ad-hoc
appointment on L.T. Grade post-short
term
vacancy-advertisement
in
one
newspapers
instead
of
two-DIOS
disapproved the appointment keeping in
view of Radha Raizada case-held-properview taken by learned single Judge
about requirement of publication in two
newspapers is mere technicality-heldnot proper-however the salary for the
period of actual working be given.

Held: Para 12 & 13

In the facts of the present case, it is
admitted on record that advertisement
has
been
published
in
only
one
newspaper.
Therefore,
we
have
no
hesitation to record that there has been
violation of law as declared by the Full
Bench of this Court, in respect of ad-hoc
appointment against short term vacancy
as claimed by the petitioner. Further we
are of the opinion that the District
Inspector of Schools was justified in
refusing to accord financial approval to
the ad hoc appointment of the petitioner
on said ground, inasmuch as, as stated
above, is in strict conformity with the
law laid down by the Full Bench of this
Court.

The Hon'ble Single Judge was not
justified in upsetting the said order
passed by the District Inspector of
Schools
by
observing
that
nonpublication of the vacancy for ad hoc
appointment against short term vacancy
in two newspapers was only technical in
nature.
Case law discussed:
(1994) 3 UPLBEC 1551; Writ Petition No.
51370 of 2005 decided on 11.06.2007.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard learned Standing Counsel
for appellants and Sri R.R. Singh, learned
counsel for respondents.

2. State of Uttar Pradesh has filed
this intra court appeal against the
judgement and order of the Hon'ble Single
Jude dated 15th July, 2004, passed in Civil
Misc. Writ Petition No. 19736 of 2001.

3. Brief facts of the case relevant to
be noticed for deciding the present appeal
are as follows:

4. Barauli Inter College, Barauli
Rao, Aligarh is a recognised and aided
intermediate college. The provisions of
U.P. Intermediate Education Act, 1921
and those of U.P. Secondary Education
Services Selection Board Act, 1982 are
fully applicable to the teachers and staffs
of the institution. One L.T. Grade teacher
3 All] State of U.P. and another V. Krishnendra Gaur and another
897
working in the institution, namely,
Govind Singh was promoted on ad-hoc
basis as lecturer under order dated 9th
July, 1997. As a consequence thereto
resultant short term vacancy was caused
in the institution in L.T. Grade. The
vacancy is stated to have been advertised
by the Committee of Management of the
institution for the purposes of making adhoc appointment in one daily newspaper,
namely, Amar Ujala on 12th August,
1997. From the record it is established
that nearly 20 applications were received
In response to the advertisement. Out of
candidates, who actually appeared for
interview, petitioner-respondent no.1 was
found to be most suitable and therefore,
he was issued an appointment letter by the
Manager of the institution dated 22nd
September, 1997. The petitioner joined in
pursuance thereto. Since the petitioner
was. not being paid salary, despite his
appointment as such by the District
Inspector of Schools, he approached this
Court by means of Writ Petition No. 4438
of 1999. The writ petition was disposed of
by the Hon'ble Single Judge by means of
the judgment and order dated 16th
February, 1999 requiring the District
Inspector of Schools to examine the
legality of the appointment of the
petitioner and to pass appropriate orders
within the time specified in the order of
the Court qua payment of salary as
claimed. The District Inspector of Schools
by means of order dated 29th April, 1999
refused to accord approval to the said adhoc appointment of the petitioner against
short term vacancy on following three
grounds:

(a) Vacancy has been advertised in only
one newspaper, when under law it should
have been advertised in at least two
newspapers,
(b) The management of the institution had
no
jurisdiction
to
make
ad-
hoc
appointment against short term vacancy
on the relevant date, and
(c) There was a ban imposed on ad-hoc
appointment by the State Government.

5. Not being satisfied with the order
of the District Inspector of Schools
petitioner filed writ petition no, 19736 of
2001. The Hon'ble Single Judge after
noticing the objections raised in the order
of the District Inspector of Schools, has
allowed the writ petition vide judgment
and order dated 15th July, 2004 and has
held that the petitioner-respondent no.1
was entitled to salary from the date of
appointment. It is against this judgement
and order of the Hon'ble Single Judge that
the State has filed the present intra court
appeal.

6. Learned Standing Counsel on
behalf of State-appellants contends that
the Hon'ble Single Judge was not justified
in recording a finding that publication of
the vacancy in one newspaper alone was
sufficient
and
the
breach
of
the
requirement of advertisement being made
in two newspapers was only a technical
lapse, for which the ad-hoc appointment
of the petitioner could not have been
disapproved. Learned Standing Counsel
with
reference
to
the
Full
Bench
Judgement of this Court in the case of
Radha Raizada & Ors. vs. Committee
of Management, Vidyawati Darbari
Girls Inter College & Ors., reported in
(1994) 3 UPLBEC 1551, submits that the
Full Bench has categorically laid down as
a proposition of law that for ad-hoc
appointment against short term vacancies,
advertisement must be made in at least
two
newspapers
having
adequate
circulations. He therefore, submits that
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
898
such law which has been declared by the
Full Bench of this Court in the case of
Radha Raijada (Supra) could not have
been diluted by the Hon'ble Single Judge
by providing the publication in one
newspaper was sufficient.

7. So far as other two grounds
mentioned in the order of the District
Inspector of Schools are concerned,
learned Standing Counsel has fairly
conceded that on the relevant date the
management was competent to make
appointment on ad-hoc basis against short
term vacancy and further that no ban was
imposed on ad-hoc appointment against
short
term
vacancy
by
the
Sate
Government.

8.

Faced
with
the aforesaid
contention, Sri R.R. Singh, learned
counsel for the respondents submits that
although there cannot be any dispute with
regard to the law as explained by the Full
Bench of this Court in the case of Radha
Raijada (Supra), but in the facts of the
present case, since advertisement was
made in a well known daily newspaper,
namely, Amar Ujala, the Appellate Court
may not interfere with their judgment and
order of the Hon'ble Single Judge. More
so when nearly 20 applications were
received in response to the advertisement.
He lastly submits that the petitioner has
actually
discharged
duties
in
the
institution, therefore, for the period he has
actually worked, he is entitled to the
salary.

9.

We
have
considered
the
submissions made by the learned counsel
for the parties and have perused the
records.

10. For the purposes of appreciating
the controversy raised in the present
appeal it would be worthwhile to
reproduce relevant portion of the Full
Bench Judgement of this Court in the case
of Radha Raijada (Supra), which reads
as follows:

"43. ..... I am, therefore, of the view
that the procedure for notifying the short
terms, vacancy should be the same as it is
for the ad hoc appointment by direct
recruitment under the First Removal of
Difficulties Order. The management
after intimating such vacancy to the
District Inspector of Schools advertise
such short term vacancy at least in two
News
Papers
having
adequate
circulation in Uttar Pradesh in addition
to notifying the said vacancy on the notice
board of the institution and further the
application may also be invited from the
local employment exchange.

11. From the aforesaid, it is
apparently clear that the Full Bench of
this Court has clarified that even a short
term vacancy is required to be advertised
in like manner as provided for the
substantive vacancy, before making ad
hoc appointment as per the First Removal
of Difficulties Order. It has been further
clarified that advertisement in respect of
short term vacancy should be published in
at least two newspapers having adequate
circulation through out the State of Uttar
Pradesh.

12. In the facts of the present case, it
is admitted on record that advertisement
has
been
published
in
only
one
newspaper.
Therefore,
we
have
no
hesitation to record that there has been
violation of law as declared by the Full
Bench of this Court, in respect of ad-hoc
3 All] State of U.P. and another V. Krishnendra Gaur and another
899
appointment against short term vacancy
as claimed by the petitioner. Further we
are of the opinion that the District
Inspector of Schools was justified in
refusing to accord financial approval to
the ad hoc appointment of the petitioner
on said ground, inasmuch as, as stated
above, is in strict conformity with the law
laid down by the Full Bench of this Court.

13. The Hon'ble Single Judge was
not justified in upsetting the said order
passed by the District Inspector of
Schools by observing that non-publication
of the vacancy for ad hoc appointment
against short term vacancy in two
newspapers was only technical in nature.

14. This Court may emphasize that
the Hon'ble Supreme Court as well as the
Division Benches of the Hon'ble High
Court have repeatedly held that if law
requires something to be done in a
particular manner, it has to be done in the
manner prescribed or not at all. Reference
be had to the recent judgment in the case
of Professor Ramesh Chandra Vs. State
of Uttar Pradesh & Others; Civil Misc.
Writ Petition No. 51370 of 2005, decided
on 11th June, 2007, wherein the Division
Bench has held as follows:
"When the Statute provides for a
particular procedure, the authorities has
to follow the same and cannot be
permitted to act in contravention of the
same. It has been hither to uncotroverted
legal position that where a statute
requires to do a certain thing in a certain
way, the thing must be done in that way or
not at all. Other methods or mode of
performance
are
impliedly
and
necessarily forbidden. [(1) State of Uttar
Pradesh Vs. Singhara Singh & Ors.; AIR
1964, SC 358, (2) A.K. Roy & Anr. vs.
State of Punjab & Ors., AIR 1986 SC
2160, and (3) Chandra Kishore Jha vs.
Mahavir Prasad, (1998) 8 SCC 266]

The
aforesaid
settled
legal
proposition is based on a.legal maxim
"Expressio unius est exclusio alterius'',
meaning thereby that -if a statute provides
-for a thing to be done in a particular,
then it has to be. done in that manner and
in no other manner and following other
course is not permissible. This maxim has
consistently been followed, as is evident
from the cases referred to above. A
similar view has been reiterated in
Haresh Dayaram Thakur vs. State of
Maharashtra & Qrs., (2000) 6 SCC 179;
Delhi Administration vs. Gurdip Singh
Uban & ors., (2000) 7 SCC 296;
Dhananjaya Reddy vs. State of Karnataka
ete.etc., (2001) 4 SCC 9; Commissioner of
Income Tax, Mumbai Vs. Anjum M.H.
Ghaswala & ors., (2002) 1 SCC 633;
Prabha Shankar Dubey vs. State of
Madhya Pradesh, AIR 2004 SC 486; and
Ram Phal Kundu vs. Kamal Sharma, AIR
2004 SC 1657."

15. In view of the aforesaid, the
judgement and order of the Hon'ble Single
Judge dated 15th July, 2004 upsetting the
order of the District Inspector of Schools
dated 29th April, 1996 cannot be legally
sustained. We are of the considered
opinion that the order of the District
Inspector of Schools refusing to accord
approval to the ad hoc appointment of the
petitioner against short term vacancy was
legal and valid and could not have been
set aside in writ jurisdiction by this Court
under Article 226 of the Constitution of
India. The judgement and order of the
Hon'ble Single Judge dated 15th July,
2004 is hereby set aside.

16. At this stage we may consider
the grievance of the petitioner that
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
900
subsequent to his ad hoc appointment by
the Management, because of the interim
order granted by this Court in writ
petition as well as under final judgment of
the Hon'ble Single Judge referred to
above, he has actually worked in the
institution, he is therefore, entitled for
salary for the period of actually working.

17. In the facts of this case we feel
that it would be too harsh to deny the
salary to the petitioner for the services
actually rendered, we therefore, provide
that the appellants shall ensure payment
of salary to the petitioner for the period he
has actually discharged his duties in the
institution under interim order of this
Court passed in writ petition as well as
under final judgment and order of the
Hon'ble Single Judge till date, if not
already paid.

18. This special appeal is allowed
subject to the observations made above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.9701 of 1983

Ram Kumar Barnwal

...Petitioner
Versus
Ram Lakhan and others ...Respondents

Counsel for Petitioner:
Sri S.K. Misra
Sri Somesh Khare
Sri A.K. Gupta
Smt. Komal Khare

Counsel for the Opposite Parties:
Sri M.D. Singh Shekhar
Sri T.P. Singh
Sri K.M. Dayal
Sri Shashi Nandan
Sri Atteq Ahmad
Sri R.D. Tiwari
Sri S.P. Pandey
Sri A.K. Mishra
Sri Rahul Sripat
Sri S.K. Mehrotra
Sri Bharat Garg
Sri Sudhir Chandra
S.C.

U.P.
Urban
Building
(Regulation
of
Letting Rent and Eviction) Act 1972Section 21-Release application by land
lord to settled his son on businessshowing his bonafide need-rejected by
the court below on the ground-the son of
land lord has already joined the business
of his father in a tenanted building-heldillegal-tenanted shop of the land lord can
not came in way of consideration of
bonafide need-even the son of land lord
can not be compelled to join the
business of his father-finding of both the
court below on both points patently
erroneous-liable to quash.

Held: Para 14

Accordingly, in my opinion, bona fide
need of landlord was/is fully proved.
Balance of hardship also lies in his
favour. Findings of both the courts below
on
both
the
points
are
patently
erroneous in lay and liable to be
quashed.
Case law discussed:
2007 AIR SCW 3250, 2005 (2) A.R.C. 793,AIR
2003 SC 780

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
parties.

2. This is a landlord's writ petition
arising out of eviction/release proceedings
initiated by him against tenant-respondent