The legal provisions allowing for stopgap/temporary appointments and the procedural nature of the advertisement requirement influenced the court's decision.

A. K. YOG, J.

( 1 ) THIS special appeal by the District Inspector of Schools. Kanpur Nagar and another has been filed against the judgment and order dated April 16, 1999 passed by learned single Judge in Writ petition No. 9767 of 1994. Diwakar Lal and 3 others v. District Inspector of Schools. Kanpur nagar and others.

( 2 ) P. N. N. Inter College, Kanpur (called college) is, admittedly, a recognised Intermediate college governed by the provisions of the U. P. Intermediate Education Act, 1921, Payment of salaries Act, 1971, and U. P. Secondary Education Services Commission Act, 1981. Four posts of Lecturers in the College fell vacant. Requisition was sent to the Commission, Still the posts remained vacant for more than two months as the Commission failed to select and recommend candidates. Hence, four Assistant Teachers in L. T. grade were promoted on the posts of Lecturer in the College--purely on ad hoc basis as follows : 1. S. K. Srtvastava, L. T. Grade Teacher--given ad hoc promotion--on post of Lecturer chemistry. 2. S. K. Tiwari, L. T. Grade Teacher--given ad hoc promotion--on post of Lecturer Economics.

( 3 ) RAM Surat Misra, L. T. Grade Teacher--promoted ad hoc on--post of Lecturer Sanskrit.

( 4 ) MOHAN Lal Yadav, L. T. Grade Teacher--promoted ad hoc--on the post of Lecturer geography. 3. Consequently, short term vacancies occurred on four posts of Assistant Teachers in L. T. Grade under Removal of Difficulties Second Order 1981. The management sought to fill up the resultant short term vacancies by making short term ad hoc appointments of the petitioners--Diwakar Lal, Deepak Kumar Shukla, Surcndra Mohan Srtvastava and Lal Bahadur and appointment letters (Annexures-1, 2, 3 and 4 to the writ petition) were issued. Papers were sent to the District Inspector Schools and they were allowed to Join the posts. In paragraph 10 of the writ petition, it is stated that these petitioners actually joined the College and started discharging their duties to the full satisfaction of the Management. The District Inspector of schools refused to approve these appointments and withheld financial sanction. The petitioners made representations until the District Inspector of Schools officially passed order dated 9th february. 1994. {annexure-10 to the writ petition) Informing the Manager of the College that resultant vacancies could not be filled up under Removal of Difficulties Order, 1981. 4. Feeling aggrieved petitioners filed abovementioned Writ Petition No. 9767 of 1994 and an interim order dated 9th March, 1994, was passed ; relevant extract is reproduced below :

". . . . . meanwhile respondents are directed to pay salary to the petitioner with effect from 2. 7. 1993. in accordance with law or show cause. . . . . "

Parties exchanged counter and rejoinder-affidavits.

( 5 ) THIS writ petition has been finally disposed of by the learned single Judge vide judgment and order dated 16th April, 1999. which has given rise to the present special appeal.

( 6 ) THE learned single Judge observed that respondents, apart from the ground mentioned in the impugned order of the District Inspector of Schools dated 9th February, 1994 (Annexure-10 to the writ petition), made an attempt to support their defence by offering an additional ground in the counter affidavit to the effect that the posts were not properly advertised.

( 7 ) THE learned single Judge held that by adding a ground in the counter-affidavit, which did not find mention in the Impugned order passed by the District Inspector of Schools, the respondents cannot be permitted to support the Impugned order by carving out a new case or raise a new ground for the first time before the Appellate/higher authority or Court to make the order valid. In support, reference was made to the case of Mohinder Singh Gill v. Chief Election commissioner. AIR 1978 SC 851.

( 8 ) THE learned single Judge In the alternative considered that assuming the post was not advertised, the appointment in question shall not be