KAMESHWAR THAKUR Vs. R.H.E.O.

JUDGEMENT

(1.) Heard Sri Yogesh Agarwal, learned counsel for the petitioner, Sri Siddharth Singh, learned counsel for the respondent No.3 and learned standing counsel for the respondents No.1 & 2.

(2.) This writ petition has been filed praying for a writ, order or direction in the nature of certiorari to quash the order dated 15.07.1993 passed by the District Inspector of Schools, Ballia.

(3.) Learned counsel for the petitioner submits that specific averments made in paragraphs-21, 25 & 27 have been replied by the respondent No.3 in paragraphs-16, 18 and 20 of the counter affidavit without annexing any evidence of affording opportunity of hearing to the petitioner and thus, averments made in the counter affidavit are not entertainable in view of the law laid down by the Hon'ble Supreme Court in the case of Bharat Singh: Dallu: Nathu Ram: Ram Phal Vs. State of Haryana, 1988 AIR(SC) 2181 (para-13) to the effect that when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit and if the facts are not pleaded or evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. He submits that the resignation was obtained by force and as such there is no resignation in the eyes of law. He further submits that Clause 35.02 of Chapter XXIII of Statute of University of Gorakhpur provides the manner for resignation by a temporary employee from service by giving one month's notice in advance in writing to the management otherwise he has to deposit one month's salary in lieu of notice. In the present set of facts, the petitioner has neither deposited one month's salary with the college nor the college has demanded one month's salary from the petitioner in lieu of notice and as such even this forced resignation was without compliance to the procedure prescribed by statute 35.02. In support of his submission, he relied upon a decision of Hon'ble Supreme Court in the case of A.K. Roy Vs. State of Punjab, 1986 AIR(SC) 2160 (para-10) to submit that if a statute prescribes the manner in which something is to be done, then it has to be done in that manner and in no other manner. He, therefore, submits that since the resignation of the petitioner dated 01.07.1992 was obtained by force by the management of the college and also since the aforesaid resignation was not in the manner prescribed by statute 35.02 of Chapter XXIII of Statute of University of Gorakhpur and as such the aforesaid resignation was wholly null and void. He further submits that no opportunity of hearing was afforded by the respondent No.2 before passing the impugned order dated 15.07.1993.