Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 1808 (ALL)

STATE OF U. P. v. KRISHNENDRA GAUR

2008-08-28

ARUN TANDON, ASHOK BHUSHAN

body2008
JUDGMENT By the Court.—Heard learned Standing Counsel for appellants and Sri R.R. Singh, learned counsel for respondents. 3. State of Uttar Pradesh has filed this intra court appeal against the judgment and order of the Hon’ble Single Judge 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 : 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 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 ad hoc 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 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 ad-hoc 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. 4. 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 judgment and order of the Hon’ble Single Judge that the State has filed the present intra court appeal. 5. 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 judgment of this Court in the case of Radha Raizada & Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College & Ors., 1994(2) ESC 345 (All)(FB), 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. v. Committee of Management, Vidyawati Darbari Girls Inter College & Ors., 1994(2) ESC 345 (All)(FB), 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 such law which has been declared by the Full Bench of this court in the case of Radha Raizada (supra) could not have been diluted by the Hon’ble Single Judge by providing the publication in one newspaper was sufficient. 6. 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 State Government. 7. 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 Raizada (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 the 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. 8. We have considered the submissions made by the learned counsel for the parties and have perused the records. 9. For the purposes of appreciating the controversy raised in the present appeal it would be worthwhile to reproduce relevant portion of the Full Bench Judgment of this Court in the case of Radha Raizada (supra), which reads as follows : “43. ...............I am, therefore, of the view that the procedure for notifying the short-term vacancy should be the same as it is for the ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. ...............I am, therefore, of the view that the procedure for notifying the short-term 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....” 10. 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 throughout the State of Uttar Pradesh. 11. 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. 12. 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. 13. 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. 13. 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 v. State of Uttar Pradesh & Ors., 2007(4) ESC 2338 (All)(DB) : 2007(6) ADJ 112 (DB), 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 uncontroverted 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 v. Singhara Singh & Ors., AIR 1964 SC 358 ; (2) A.K. Roy & Anr. v. State of Punjab & Ors., AIR 1986 SC 2160 ; and (3) Chandra Kishore Jha v. 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 v. State of Maharashtra & Ors., (2000) 7 SCC 296 ; Dhananjaya Reddy v. State of Karnataka etc. etc., (2001) 4 SCC 9 ; Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633 ; Prabha Shankar Dubey v. State of Madhya Pradesh, AIR 2004 SC 486 ; and Ram Phal Kundu v. Kamal Sharma, AIR 2004 SC 1657 .” 14. In view of the aforesaid, the judgment and order of the Hon’ble Single Judge dated 15th July, 2004 upsetting the order of the District Inspector of Schools dated 29th April, 1999 cannot be legally sustained. In view of the aforesaid, the judgment and order of the Hon’ble Single Judge dated 15th July, 2004 upsetting the order of the District Inspector of Schools dated 29th April, 1999 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 judgment and order of the Hon’ble Single Judge dated 15th July, 2004 is hereby set aside. 15. At this stage we may consider the grievance of the petitioner that 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. 16. 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. 17. This special appeal is allowed subject to the observations made above. ———— 118. It is true that in the counter affidavit, it has been stated that various other factors have been taken into consideration while fixing the SAP but the Cabinet decision and the reason on the basis of which such a decision was taken, produced by the learned Additional Advocate General, show that it does not specifically mention of those factors but such factors were inherent in the aforesaid considerations. It is a fact that in the crushing season 2006-07, the cost of cultivation of sugarcane was determined as Rs. 102.28 per quintal and the SAP was fixed as Rs. 125/- per quintal for normal varieties, Rs. 130/- for early maturing varieties and Rs. 122.50 for rejected varieties. It is a fact that in the crushing season 2006-07, the cost of cultivation of sugarcane was determined as Rs. 102.28 per quintal and the SAP was fixed as Rs. 125/- per quintal for normal varieties, Rs. 130/- for early maturing varieties and Rs. 122.50 for rejected varieties. Notice can be taken of the fact that the cost of cultivation of sugarcane for the present crushing season has been determined as Rs. 114.09 per quintal and even then the same SAP has been maintained, which obviously means that reasonable return to the farmers has decreased to a considerable extent. The State Government was fully conscious of the increased cost of sugarcane cultivation/growing/sowing and also of the expectation of the cane growers to have a reasonable price of their produce, but the State Government, in the interest and for the benefit of the industry did not enhance the price already fixed for the previous season. 119. The State Government considered the reason of over production of sugar in the previous season for the huge losses suffered by the sugar industry and the low price that it fetched to the sugar industry, both in national and international market and being of the view that the same position shall continue in this crushing season also and, therefore, if the State decided not to enhance the SAP and fixed the SAP on the same price, it obviously means that the interest of the sugar mills regarding margin of profit and paying capacity were such factors, which were in due consideration of the State Government, while determining the SAP. 120. This also persuades us to hold that the State Government had in its mind all the relevant factors the paying capacity and the profitability of the sugar factories etc. as put forth by the petitioners for protecting the interest of the sugar mills, while fixing the SAP. 121. It would be apposite to reiterate that the SPOT price index does not show that the price of sugar had gone, at any point of time, below Rs. 1400/- per quintal as against the FUTURE price index, on which reliance has been placed by the petitioners, showing the trend to be less than Rs. 1200/- per quintal, though both the prices would be subject to certain taxes. 122. 1400/- per quintal as against the FUTURE price index, on which reliance has been placed by the petitioners, showing the trend to be less than Rs. 1200/- per quintal, though both the prices would be subject to certain taxes. 122. Our conclusion, therefore, is that the petitioners have utterly failed to establish that the State Government while determining the SAP, did not take into account the prevalent market price of sugar and that the losses incurred to the sugar industry making the prices highly excessive, which will necessarily lead to losses, whereas the State Government provenly had considered the factum of loss said to have been incurred to the sugar factories in previous crushing season alongwith the reason for such loss and the probable further low market price, though the State Government was speculative in its assessment. The State Government also considered the profitability aspect of the sugar mills. 123. In fact, the considerations made by the State Government do not spell out anything about the cane growers’ interest. By maintaining the same SAP for the present crushing season as that of the crushing season 2006-07, it needs no calculation to say that the margin of profits (reasonable return) to the farmers has considerably decreased, looking to the increased cost of cultivation and growing of sugarcane. 124. The argument that the SAP is very high and has been arbitrarily fixed, is based on the plea that the U.P. Council of Sugarcane Research, Shahjahanpur, was not competent to determine the cost of production/cultivation of sugarcane and, therefore, no sanctity could be attached to the data provided by it. Their plea is that the determination made by the CACP should have been adhered to. 125. The determination made by the CACP, as already observed, is not the determination of remunerative price of sugarcane. The SAP has to be determined by taking into consideration various factors and if the plea is accepted, it would mean that whatever price is fixed as SMP taking into consideration the factors enumerated in Clause 3(1) of the Control Order, 1966, there would be no scope for the State Government to fix any enhanced SAP. 126. This argument stands repelled by the Constitution Bench judgment in the case of U.P. Cooperative Cane Union Federation, wherein it is specifically held that the SAP has to be higher than the SMP. 126. This argument stands repelled by the Constitution Bench judgment in the case of U.P. Cooperative Cane Union Federation, wherein it is specifically held that the SAP has to be higher than the SMP. To what extent, it should be high, is a matter which can always be a subject matter of argument. In case the SAP suffers from any arbitrariness and excessive high fixation, of course, judicial review would be possible but if the Court is satisfied that, it is a reasonable and uniform SAP fixed, there would be little scope for the Court to intervene. 127. The U.P. Council of Sugarcane Research, Shahjahanpur is an expert body, consisting of persons having expertise in agriculture and in the matter of sugarcane cultivation and many other officers having scientific expertise, relating to various aspects of sugarcane production. The report of the Council shows that it analyses each and every aspect of sugarcane cultivation and the cost of cultivation/growing of sugarcane has been determined after collecting the necessary data for each stage from field preparation till harvesting and supervision. Report shows that data has been collected and analysed under different heads e.g. field preparation, seed preparation, planting, ratoon preparation, irrigation, fertilizers and application, plant protection, interculture operation, harvesting, supervision; and under these heads there are sub-heads which detail other specifications. Further the report under these heads shows that other necessary details have also been taken into consideration. 128. We, therefore, find no reason to disbelieve the determination made by it for the cost of production of sugarcane, as no material or evidence has been brought on record to discredit its testimony, except the oral argument that it is a research institute, which does not have experience or expertise of open farms, where the farmers work. The report of the U.P. Council of Sugarcane Research, Shahjahanpur is based on average yield of Seorahi, Shahjahanpur and Muzaffarnagar, i.e. three cane research farms and is not merely a theoretical report. 129. On mere assumption that the said data has been since provided by a research institute, therefore, it necessarily has to be discarded or to be treated as inadmissible, could not be proved by the petitioners for any reasons. Secondly, the same very research institute has provided inputs to CACP for determining the SMP, a fact which evident by the letter dated 21.6.06, which was sent for the crushing season 2007-08. 130. Secondly, the same very research institute has provided inputs to CACP for determining the SMP, a fact which evident by the letter dated 21.6.06, which was sent for the crushing season 2007-08. 130. In the case of U.P. Cooperative Cane Union Federation, the apex Court held that there is no justifiable reason why a sugarcane grower should suffer only on account of the fact that he happens to fall within the reserved area of a mill run by the U.P. State Sugar Corporation or in the cooperative sector. The State Government fixes uniform prices and not factory wise. Such a fixation of price is, therefore, more just and equitable from the point of view of a sugarcane grower. 131. It has also been brought to our notice by the respondents that in the year 1996-97, the difference between the SAP and the SMP was about 57% (SAP - Rs. 72/- and SMP Rs. 45.90), but the said SAP was held to be a valid price by the apex Court, whereas in the present crushing season, the difference between the SAP and SMP is only 54% (SAP - Rs. 125/- and SMP Rs. 81.18) and, therefore, also it cannot be said to be an arbitrary determination or an exaggerated price. Thus, the basic pleas of the petitioners that the loss to the sugar industry and the downward trend in the market price of sugar in national and international market because of record production of sugar, were not considered by the State Government, stand rebutted by the deliberations made by the State Government and the observations made by us in this order. 132. Keeping in mind the exercise done by the State Government, the factors taken into consideration by it and the findings recorded by us on the pleas raised by the parties and for the reason that the SAP is the remunerative price of the sugarcane for payment to the cane growers, which is bound to be higher than the SMP, the SAP so fixed does not appear to be unreasonable so as to be interfered by the Court. 133. We thus uphold the SAP fixed for various varieties of sugarcane for the crushing season 2007-08. 134. 133. We thus uphold the SAP fixed for various varieties of sugarcane for the crushing season 2007-08. 134. We, therefore, direct that henceforth, the petitioners shall pay the SAP at the price determined by the State Government and the arrears of difference of the SAP as against the payment made in pursuance of the interim order passed by this Court, shall also be paid to the cane growers within a maximum period of two months. 136. With the aforesaid directives, the petitions are dismissed. ————