# Deepti Singh v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 562
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-20
- **Case number:** Writ-A No. 6662 of 2023
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepti-singh-v-state-of-u-p-ors-49374
- **Pages:** 10

## Headnote

A. Service Law - Constitution of India -
Article 309, 310 & 320 - GO dated
02.06.2023 - Clause 12(4) - Transfer -
Weightage of 10 marks by considering the
spouse (husband) as the government
servant claimed by Assistant Teacher - As
an employee of University, how far
husband come within purview of govt.
servant - Appointment of husband was
neither made in consultation with the
State Public Service Commission nor there
is any administrative control vested with
the regard to the functioning in His
Excellency the Governor - Effect - Held,
mere fact that the appointment of the
petitioner's husband on compassionate
ground has been made by following the
Rules, 1974 which have been 'adopted' by
the Lucknow University and that the
service rules for non teaching staff are
those which have been 'adopted' by the
Lucknow University pertaining to the
State Government which are applicable for
Group C post would not render the
petitioner's husband as either being a
Government
servant
or
being
in
Government service. (Para 29)
Writ petition dismissed. (E-1)
List of Cases cited:

## Text

562 INDIAN LAW REPORTS ALLAHABAD SERIES
it had imposed that was set aside by this
Court in first round of litigation, I find
merit in the argument advanced by learned
Standing Counsel that any decision now by
this Court to arrive at a different conclusion
would amount to sitting in appeal over and
above
the
decision
of
disciplinary
authority, which would not be proper in
exercise of power under Article 226 of the
Constitution.

33. In view of the above, petition fails
and is accordingly dismissed.
----------
(2023) 11 ILRA 562
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.11.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 6662 of 2023

Deepti Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ashish Kumar Rai, Rajat Aren, Rishi Srivastava

Counsel for the Respondents:
C.S.C., Abhinav Singh, Kumar Ayush, Ran Vijay
Singh, Savitra Vardhan Singh

A. Service Law - Constitution of India -
Article 309, 310 & 320 - GO dated
02.06.2023 - Clause 12(4) - Transfer -
Weightage of 10 marks by considering the
spouse (husband) as the government
servant claimed by Assistant Teacher - As
an employee of University, how far
husband come within purview of govt.
servant - Appointment of husband was
neither made in consultation with the
State Public Service Commission nor there
is any administrative control vested with
the regard to the functioning in His
Excellency the Governor - Effect - Held,
mere fact that the appointment of the
petitioner's husband on compassionate
ground has been made by following the
Rules, 1974 which have been 'adopted' by
the Lucknow University and that the
service rules for non teaching staff are
those which have been 'adopted' by the
Lucknow University pertaining to the
State Government which are applicable for
Group C post would not render the
petitioner's husband as either being a
Government
servant
or
being
in
Government service. (Para 29)
Writ petition dismissed. (E-1)
List of Cases cited:
1. Pradyat Kumar Bose Vs Hon'ble the Chief
Justice of Calcutta High Court; AIR 1956 SC 285
2. St.of Mah. & anr. Vs Bhagwan & ors.; (2022)
4 SCC 193

(Delivered by Hon'ble Abdul Moin, J.)

1. Supplementary
affidavit
filed
today in Court by Sri Ran Vijay Singh,
learned counsel for the respondent no. 3 be
kept on record.

2. Heard Sri Rajat Aren, Advocate and
Sri Rishi Srivastava, learned counsels for
the petitioner, learned Standing counsel
appearing on behalf of the respondents no.
1, 2 & 5, Sri Ran Vijay Singh, learned
counsel for the respondents no. 3, Sri
Kumar Ayush, learned counsel for the
respondent no. 4, Sri Abhinav Singh,
learned counsel for the respondent no. 6
and Sri Savitra Vardhan Singh, learned
counsel for the respondent no. 7.

3. Instant writ petition has been filed
praying for the following main reliefs:-

(i) To issue a writ, order or direction
in the nature of Certiorari calling for the
11 All. Deepti Singh Vs. State of U.P. & Ors.
563
records of the case and to quash order
dated 27.07.2023 passed by the respondent
no. 6, Annexure No. 25 (District Basic
Education Officer, Unnao) being violative
of G.O dated 29.06.2023 issued by the
respondent no. 1 (Not available in Public
domain)
as
well
as
circular
dated
29.06.2023 and circular dated 01.07.2023
issued by Respondent No. 3 and also being
violative of the Provisions of Section 13 of
the U.P. Basic Education Act, 1972.

(ii) To issue a writ, order or direction
in the nature of Mandamus commanding
the Respondents (Specially Respondent No.
3 & 6) to allow the petitioner to Re-join in
the office of Respondent no. 6 (District
Basic
Education
Officer,
Unnao)
in
pursuance of the Relieving order dated
04.07.2023 passed by Respondent No. 4
(District
Basic
Education
Officer,
Bahraich)

(iii) To issue a writ, order or direction
in the nature or Mandamus commanding
the Respondents (Specially Respondent No.
3, 4 & 6) to regularly pay the salary to the
petitioner
w.e.f
01.07.2023
without
considering any break in service of the
petitioner.

(vi) To issue a suitable writ, order or
direction in the nature of Certiorari to
quash the consequential order no. 2873235 dated 03.10.2023 passed by the
Respondent No. 3 (Annexure No. S.A 4 to
the supplementary affidavit) as being
arbitrary and contrary to Sub clause (4) of
the Clause 12, G.O. dated 29.06.2023
issued by Respondent No. 1 as well as
Clause (8) of Circular dated 16.06.2023 &
Circular dated 29.06.2023 issued by
Respondent No. 3 and also being violative
of the Provisions of Section 13 of the Uttar
Pradesh Basic Education Act, 1972.

(vii) To issue a writ, order or direction
in the nature of Mandamus commanding
Respondent No. 3, 4, 5 & 6 to give effect
to/implement Merit List dated 26.06.2023
(in so far as it relates to the petitioner at
Ser. No. 3458), consequential joining by the
petitioner dated 06.07.2023 and take all
necessary Consequential actions for Inter
District Transfer of the petitioner From
District- Bahraich to District- Unnao."

4. The case set forth by the learned
counsel for the petitioner is that the
petitioner while working as an Assistant
Teacher at Bahraich applied for her inter
district transfer from District- Bahraich to
District- Unnao. Despite the petitioner
having been found eligible for being
transferred and despite her joining at
Unnao subsequently, through an order
dated 27.07.2023, a copy of which is
annexure 25 to the writ petition, the
transfer of the petitioner has not been found
to be in accordance with law and therefore,
the petitioner has been required to join at
her initial place of posting i.e Bahraich.
Later, through an order dated 03.10.2023, a
copy of which has been filed as Annexure
SA 4 to the supplementary affidavit, the
respondent no. 3 after considering the
provisions of the Government order dated
02.06.2023 governing the inter district
transfer as well as the clarification dated
16.06.2023 has found that the petitioner has
erroneously been transferred from District-
Bahraich
to
District-
Unnao
and
consequently,
her
transfer
has
been
cancelled.

5. The contention of learned counsel
for the petitioner is that a Government
order dated 02.06.2023, a copy of which is
annexure 11 governs the cases for inter
district transfer of Assistant Teachers. The
petitioner claims that her case is covered by
Sub clause (4) of Clause 12 of the aforesaid
Government order which provides that
those teachers whose spouse are in
564 INDIAN LAW REPORTS ALLAHABAD SERIES
Government service i.e a service under the
Union of India/ Indian Army/ Indian Air
force/ Indian Navy/ Central Para Military
Forces and State Government and working
under the Uttar Pradesh Basic Shiksha
Parishad on a regular basis would be
accorded 10 weightage points for transfer.
The said Government order has been
clarified through the clarification dated
16.06.2023, a copy of which is annexure 13
to the writ petition, which, so far as it
relevant to the facts of the instant case,
provides that the Government service
would be considered to be one where the
services of the employee are governed by
the rules framed under Article 309 of the
Constitution of India.

6. In pursuance of the aforesaid
Government
order
and
circular,
the
petitioner claims to have applied for her
transfer from District- Bahraich to District-
Unnao which found favour with the
respondents and the petitioner was relieved
for her joining at Unnao vide order dated
04.07.2023 and also submitted her joining
at Unnao on 06.07.2023 and continued
working
when
through
the
orders
impugned, her transfer has not been found
to be in accordance with the Government
orders dated 02.06.2023 & 16.06.2023 and
consequently,
her
transfer
has
been
cancelled and hence the petition.

7. Learned counsel for the petitioner
has argued that the husband of the
petitioner is working as a Senior Assistant
in the Lucknow University. He had been
appointed on compassionate grounds vide
order dated 15.10.2003, a copy of which
has been filed as annexure 6 to the writ
petition. It is contended that the Lucknow
University has adopted the Uttar Pradesh
Government Servants Dying-in- Harness
Rules, 1974 (hereinafter referred to as
"Rules, 1974") for the purpose of making
compassionate appointments as would be
apparent from a perusal of Minutes of the
Executive Council dated 11.12.2021, a
copy of which is part of annexure 27 to the
writ petition. Reliance has also been placed
on the office order dated 15.03.2021 which
is also part of annexure 27 to the writ
petition (Page 201) to contend that there are
no service rules governing the appointment
of non teaching staff in the Lucknow
University and consequently, the Lucknow
University has adopted the rules of the
State Government which are applicable for
Group C posts.

8. Placing reliance on the aforesaid
orders and minutes as well as the
appointment of the husband of the
petitioner
having
been
made
on
compassionate grounds under the Rules,
1974 the contention is that when as per the
proviso to Article 309 of the Constitution of
India, the rules regulating the recruitment
and the conditions of service of the
petitioner's husband have been issued by
His
Excellency
The
Governor
consequently, the husband of the petitioner
would be covered by the Government order
dated 02.06.2023 as clarified vide circular
dated 16.06.2023 more particularly keeping
in view Clause 8 of the aforesaid circular. It
is contended that the petitioner would be
entitled for weightage of 10 points upon her
husband being an employee of the
Lucknow
University
and
thus
the
respondents have wrongly rejected the
claim of the petitioner for her inter district
transfer by not granting the weightage of 10
marks and thus the order impugned merits
to be set aside.

9. Sri Rajat Aren, learned counsel for
the petitioner fairly states that but for the
weightage of 10 marks to which the
11 All. Deepti Singh Vs. State of U.P. & Ors.
565
petitioner is eligible, in case the 10 marks
are not awarded to her, she would not be
eligible for her transfer from District-
Bahraich to District- Unnao.

10. On the other hand, the learned
counsels appearing on behalf of the
contesting respondents argue that when the
petitioner had applied for her inter district
transfer from District- Bahraich to District-
Unnao she had filled in the form wherein
she had indicated her husband as being a
Government servant. Considering this, she
had been awarded 10 marks for weightage
and she had been transferred from District-
Bahraich to District- Unnao. The petitioner
also submitted her joining at Unnao and
also started working. Subsequently, the
respondents realized that the husband of the
petitioner is simply a Senior Assistant
working in the Lucknow University and
thus the petitioner would not be entitled for
weightage of 10 marks considering the
provisions of Government order dated
02.06.2023 read with the clarification dated
16.06.2023. Thus, the respondents passed
the order whereby the transfer of the
petitioner from District- Bahraich to
District- Unnao was rejected followed by
the order impugned dated 03.10.2023. It is
thus contended there is no illegality and
infirmity with the orders impugned.

11. Sri Ran Vijay Singh, learned
counsel appearing on behalf of the
respondent no. 3 has also argued that Sub
clause (4) of Clause 12 of the Government
order dated 02.06.2023 would be applicable
where the spouse is working under the
State
Government.
This
also
stands
clarified
vide
clarification
dated
16.06.2023. He contends that the proviso to
Article 309 of Constitution of India would
be applicable where the service rules have
been framed by His Excellency the
Governor and the person concerned has
been appointed and is working and is
governed by the said rules. In so far as the
case
of
the
petitioner's
husband
is
concerned who is working as Senior
Assistant in Lucknow University it is the
Rules of the State Government which have
been adopted by the Lucknow University
and thus mere "adoption" of the said rules
would not take an employee working in an
autonomous
body like
the
Lucknow
University to be within the ambit of being a
Government servant.

12. Heard the learned counsel
appearing on behalf of the contesting
parties and perused the records.

13. From the arguments as raised by
the learned counsels appearing on behalf of
the contesting parties and perusal of
records it emerges that while the petitioner
was working as an Assistant Teacher at
Bahraich, she had applied for her inter
district transfer to District- Unnao. The
application for transfer had been allowed
by the respondents and the petitioner joined
at Unnao but subsequently through an order
dated 27.08.2023, the transfer of the
petitioner was not found to be in
accordance with law and the relevant
Government order and, therefore, the
petitioner was required to join back
at her initial place of posting i.e
Bahraich. Later, through an order
dated 03.10.2023, the respondent no.
3 after considering the provisions of
the
Government
order
dated
02.06.2023
and
the
clarification
dated 16.06.2023 has found that the
petitioner
has
erroneously
been
transferred from District- Bahraich
to District- Unnao and consequently,
her
transfer
order
has
been
cancelled.
566 INDIAN LAW REPORTS ALLAHABAD SERIES

14. The reasons as emerge from a
perusal of the order impugned would
indicate that the weightage of 10 marks to
which the petitioner found herself entitled
to in the capacity of her husband being a
"Government
servant"
has
not
been
accepted and admittedly in case the
weightage of 10 marks is taken away, the
petitioner would not be entitled for her
transfer to District- Unnao.

15. Whether the petitioner is entitled
for a weightage of 10 marks by considering
her husband to be an employee of the State
Government as had been indicated by the
petitioner in her application for transfer is
to be considered.

16. In order to consider as to whether the
petitioner was entitled for the weightage of
10
marks,
the
provisions
of
the
Government order dated 02.06.2023 along
with the clarification would have to be
seen.

17. For the sake of convenience, the
relevant clause of the Government order
dated 02.06.2023 more particularly Clause
12 of the said Government order is
reproduced below:-

अन्तजषनपिीय स्थानान्तिर् प्रदक्रया में ििीयता हेतु
िेय िािाांक

िमांक मिक
अनिकिम
अंक
1
सेवा के प्रत्येक पूर्द वर्द के निए 01
अंक
15
2
निव्यांग
अध्यापक/अध्यानपका
(स्वयं/पनि
या
पत्िी/अनववानहि
पुत्र/पुत्री)
10
3
असाध्य या गम्भीर रोग से ग्रनसि
अध्यापक/अध्यानपका (स्वयं/पनि या
पत्िी/अनववानहि पुत्र/पुत्री)
20
4
नशक्षक/नशनक्षका नजिके पनि या पत्िी
सरकारी सेवा (भारि सरकार/भारिीय
थि सेिा/भारिीय वायु सेिा/भारिीय
िौ सेिा/केन्द्रीय अिद सैनिक बि एवं
उत्तर प्रिेश सरकार व उ०प्र०, बेनसक
नशक्षा पररर्ि के अिीि) में नियनमि
रूप से कायदरि हो।
10
5
एकि अनभभावक (पुत्र/पुनत्रयों का
अकेिे
पािि
करिे
वािे
नशक्षक/नशनक्षका)
10
6
मनहिा अध्यानपका

10
7
राष्ट्ट्रीय
पुरस्कार
प्राप्त
अध्यापक/अध्यानपका
5
8
राज्य
पुरस्कार
प्राप्त
अध्यापक/अध्यानपका
3

18. This Government order has been
followed by clarification dated 16.06.2023
which has also been referred to in the order
impugned
dated
03.10.2023
while
cancelling the transfer of the petitioner. For
the sake of convenience, the relevant
Clause
of
the
clarification
dated
16.06.2023, so far as it pertains to the
petitioner, is reproduced below:-

8. सरकारी सेवा का लाि ऐसे जशक्षक/जशजक्षका जजनके पजत
या पत्नी िारत सरकार/िारतीय थल सेना/िारतीय वायु
सेना/िारतीय नौ सेना/केन्द्रीय अधष स जनक बल एवं उिर प्रदेश
सरकार व उ०प्र०, बेजसक जशक्षा पररर्द के अधीन जनयजमत कायषरत
सरकारी सेवक होंगे, को ही देय होगा। िारत के संजवधान के
अनुच्छेद 309 के परन्तुक के अधीन जजन काजमषकों का सेवा
जवजनयमन होता ह , वे सरकारी सेवा की श्रेणी में मान जायेंगे। सरकारी
सेवा में अद्यतन कायषरत होने का प्रमाण पत्र जो सक्षम जनयुजक्त
प्राजधकारी द्वारा जनगषत जकया गया हो, ही मान्य होगा।
11 All. Deepti Singh Vs. State of U.P. & Ors.
567

19. Perusal of Clause 12 of the
Government order dated 02.06.2023 would
indicate that those teachers whose spouse is
working in the Central Government/Indian
Army/ Indian Air force/ Indian Navy/
Central Para Military Forces and State
Government and working under the Uttar
Pradesh Basic Shiksha Parishad would be
entitled for10 marks.

20. In terms of the clarification dated
16.06.2023 those teachers whose spouse is
working in the Central Government/Indian
Army/ Indian Air force/ Indian Navy/
Central Para Military Forces and State
Government and working under the Uttar
Pradesh Basic Shiksha Parishad are entitled
for the weightage. It has also been provided
that those employees whose service is
regulated under the proviso to Article 309
of the Constitution of India would also fall
within the ambit of Government service
meaning thereby that those personnel
whose services are regulated under the
proviso of Article 309 of the Constitution
of India, their service would be considered
as Government service.

21. In order to understand this
clarification, Article 309 of the Constitution
of India would have to be considered,
which for the sake of convenience is
reproduced below:-

"309. Recruitment and conditions of
service of persons serving the Union or a
State Subject to the provisions of this
Constitution, Acts of the appropriate
Legislature may regulate the recruitment,
and conditions of service of persons
appointed, to public services and posts in
connection with the affairs of the Union or
of any State:

Provided that it shall be competent for
the President or such person as he may
direct in the case of services and posts in
connection with the affairs of the Union,
and for the Governor of a State or such
person as he may direct in the case of
services and posts in connection with the
affairs of the State, to make rules
regulating
the
recruitment,
and
the
conditions of service of persons appointed,
to such services and posts until provision in
that behalf is made by or under an Act of
the appropriate Legislature under this
article, and any rules so made shall have
effect subject to the provisions of any such
Act."

22. A perusal of the proviso to Article
309 of the Constitution of India would
indicate that the acts of the legislature may
regulate the recruitment and conditions of
service of persons appointed to public
services and posts in connection with the
affairs of the Union or of any State,
provided that it is competent for His
Excellency the President in the case of
service and posts in connection with the
affairs of the Union and for the Governor of
a State in the case of services and posts in
connection with the affairs of the State, to
make rules regulating the recruitment and
the conditions of service of persons
appointed to such services and posts. Thus,
it is the acts of the legislature which are to
regulate the recruitment and conditions of
service of persons appointed to public
services and posts in connection with
the affairs of the Union or of any
State
provided
that
it
shall
be
competent for His Excellency the
Governor to make rules regulating the
rules and conditions of service of
persons appointed to such services and
posts.

23. Thus, the services, as are
indicated in Article 309 pertain to public
568 INDIAN LAW REPORTS ALLAHABAD SERIES
services and posts in connection with the
affairs of the Union or of any State.

24. At this stage, it would also be
relevant to refer to the provisions of Article
310 of the Constitution of India which
reads as under:-

"310. Tenure of office of persons
serving the Union or a State

(1) Except as expressly provided by
this Constitution, every person who is a
member of a defence service or of a civil
service of the Union or of an all India
service or holds any post connected with
defence or any civil post under the Union,
holds office during the pleasure of the
President, and every person who is a
member of a civil service of a State or
holds any civil post under a State holds
office during the pleasure of the Governor
of the State
(2) Notwithstanding that a person holding
a civil post under the Union or a State
holds office during the pleasure of the
President or, as the case may be, of the
Governor of the State, any contract under
which a person, not being a member of a
defence service or of an all India service or
of a civil service of the Union or a State, is
appointed under this Constitution to hold
such a post may, if the President or the
Governor as the case may be, deems it
necessary in order to secure the services of
a person having special qualifications,
provide for the payment to him of
compensation, if before the expiration of an
agreed period, that post is abolished or he
is, for reasons not connected with any
misconduct on his part, required to vacate
that post."

25. From a perusal of Article 310 of
the Constitution of India it emerges that
every person who is a member of a civil
service of the Union or holds any civil post
under the State holds office during the
pleasure of His Excellency the President or
the Governor of the State.

26. Likewise, Article 311 of the
Constitution of India so far as it is relevant
to the facts of the instant case provides that
no person who is a member of a civil
service of a State or holds a civil post under
the State shall be dismissed or removed by
an authority subordinate to that by which
he was appointed. The other provisions of
Article 311 of the Constitution of India may
not detain the Court.

27. Here it would also be relevant to
refer to the provisions of Article 320 of the
Constitution of India which read as
follows:-

"Article-320. Functions of Public
Service Commissions.

a. It shall be the duty of the Union and
the State Public Service Commissions to
conduct examinations for appointments to
the services of the Union and the services
of the State respectively.

b. It shall also be the duty of the Union
Public Service Commission, if requested by
any two or more States so to do, to assist
those States in framing and operating
schemes of joint recruitment for any
services for which candidates possessing
special qualifications are required.
c. The Union Public Service Commission or
the State Public Service Commission, as the
case may be, shall be consulted-

a. on all matters relating to methods of
recruitment to civil services and for civil
posts;

b. on the principles to be followed in
making appointments to civil services and
posts and in making promotions and
transfers from one service to another and
11 All. Deepti Singh Vs. State of U.P. & Ors.
569
on the suitability of candidates for such
appointments, promotions or transfers;

c. on all disciplinary matters affecting
a person serving under the Government of
India or the Government of a State in a
civil capacity, including memorials or
petitions relating to such matters;

d. on any claim by or in respect of a
person who is serving or has served under
the
Government
of
India
or
the
Government of a State or under the Crown
in India or under the Government of an
Indian State, in a civil capacity, that
any costs incurred by him in defending
legal proceedings instituted against
him in respect of acts done or
purporting to be done in the execution
of his duty should be paid out of the
Consolidated Fund of India, or, as the
case may be, out of the Consolidated
Fund of the State;

e. on any claim for the award of a
pension in respect of injuries sustained by a
person while serving under the Government
of India or the Government of a State or
under the Crown in India or under the
Government of an Indian State, in a civil
capacity, and any question as to the amount
of any such award,

and it shall be the duty of a Public
Service Commission to advise on any
matter so referred to them and on any other
matter which the President, or, as the case
may be, the Governor of the State, may
refer to them:

Provided that the President as respects
the all- India services and also as respects
other services and posts in connection with
the affairs of the Union, and the Governor,
as respects other services and posts in
connection with the affairs of a State, may
make regulations specifying the matters in
which either generally, or in any particular
class of case or in any particular
circumstances, it shall not be necessary for
a Public Service Commission to be
consulted.

d. Nothing in clause (3) shall require a
Public Service Commission to be consulted
as respects the manner in which any
provision referred to in clause (4) of article
16 may be made or as respects the manner
in which effect may be given to the
provisions of article 335.

e. All regulations made under the
proviso to clause (3) by the President or the
Governor of a State shall be laid for not
less than fourteen days before each House
of Parliament or the House or each House
of the Legislature of the State, as the case
may be, as soon as possible after they are
made, and shall be subject to such
modifications, whether by way of repeal or
amendment, as both Houses of Parliament
or the House or both Houses of the
Legislature of the State may make during
the session in which they are so laid."

28. From a perusal of Article 320 of
the Constitution of India it emerges that so
far as the facts of the instant case are
concerned, the functions of the public
service commissions have been indicated of
which few are for the purpose of assisting
the State in framing and operating schemes
of joint recruitment for any services for
which
candidates
possessing
special
qualification are required and that the State
Public Service Commission shall be
consulted on all matters relating to method
of recruitment to civil services and for civil
posts; the principles to be followed in
making appointments to civil services and
posts; on disciplinary matters affecting a
person serving under the Government of a
State in a civil capacity etc.

29. From a perusal of Articles 309,
310, 311 & 320 of the Constitution of India
it emerges that so far as the facts of the
570 INDIAN LAW REPORTS ALLAHABAD SERIES
instant case are concerned the phrase
"persons serving under the Government of
India or the Government of State" appears
to have reference to such persons in respect
of whom the administrative control is
vested
in
the
respective
executive
Government functioning in the name of
President or the Governor. The said person
would hold office during the pleasure of the
Governor of the State. The rules for his
recruitment would be made in consultation
with the State Public Service Commission
including the rules for making appointment
to his post and in making promotion and
transfer from one service to the other.
However, all these aspects are lacking in
the appointment of the husband of the
petitioner inasmuch as admittedly, the
petitioner's husband is an employee of the
Lucknow University an autonomous body,
the rules of the State Government have
been 'adopted' by the Lucknow University,
the appointment of the petitioner's husband
has not been made in consultation with the
State Public Service Commission nor there
are principles framed by the State Public
Service
Commission for making his
appointment and in making his promotion
and
transfer
and
neither
is
any
administrative control vested with the
regard to the functioning of the petitioner's
husband in His Excellency the Governor.
Thus, the mere fact that the appointment of
the petitioner's husband on compassionate
ground has been made by following the
Rules, 1974 which have been 'adopted' by
the Lucknow University and that the
service rules for non teaching staff are
those which have been 'adopted' by the
Lucknow University pertaining to the State
Government which are applicable for
Group C post would not render the
petitioner's husband as either being a
Government
servant
or
being
in
Government service.

30. In this regard, it would be apt to
refer to the Constitution Bench judgment of
Pradyat Kumar Bose Vs Hon'ble the
Chief Justice of Calcutta High Court
reported in AIR 1956 SC 285 wherein it
has been held as under:-

"The phrase "persons serving under
the
Government
of
India
or
the
Government of a State" seems to have
reference to such persons in respect of
whom the administrative control is vested
in the respective executive Governments
functioning in the name of the President or
of the Governor or of a Rajpramukh."

31. It is not the case and obviously it
cannot be the case of the petitioner that the
Rules of the Lucknow University have
been framed by His Excellency the
Governor rather the Lucknow University,
instead of framing its own rules, which it
has ample power to do, has simply
"adopted"
the
rules
of
the
State
Government and thus mere adoption of
rules, as already indicated above would not
make
the
petitioner's
husband
a
Government servant or render him as being
in
Government
service.
Also,
the
petitioner's husband cannot be said to be a
person serving under the Government of
the State of U.P and for whom the
administrative control is vested in the State
Government. Thus, the arguments of the
learned counsel for the petitioner are
patently fallacious and merit to be rejected
and are accordingly, rejected.

32. The fallacy of the argument of
learned counsel for the petitioner can also
be understood from a simple example that
in case a private company was to adopt the
service rules of the Government in all its
sphere of working whether the employee of
the private company would become a
11 All. Vijay Kumar Banswar Vs. Awadhesh Kumar Jaisawal
571
Government
servant
or
would
be
considered to be in Government service
entitled for the benefit of the Government
order dated 02.06.2023 read with the
clarification dated 16.06.2023? The answer
is obviously No !

33. In this regard, it would also be
pertinent to mention that in a matter
pertaining to the employees of the
autonomous bodies who were claiming as a
matter of right the same service benefits at
par with the Government employees merely
because the autonomous bodies 'adopted'
the Government service rules, the Hon'ble
Supreme Court in the case of State of
Maharashtra and anr Vs. Bhagwan and
Ors reported in (2022) 4 SCC 193 has
held as under:-

"26. As per the law laid down by this
Court in a catena of decisions, the
employees of the autonomous bodies
cannot claim, as a matter of right, the same
service
benefits
on
par
with
the
Government employees. Merely because
such autonomous bodies might have
adopted the Government Service Rules
and/or in the Governing Council there may
be a representative of the Government
and/or merely because such institution is
funded by the State/Central Government,
employees of such autonomous bodies
cannot, as a matter of right, claim parity
with
the
State/Central
Government
employees. This is more particularly, when
the employees of such autonomous bodies
are governed by their own Service Rules
and
service
conditions.
The
State
Government
and
the
Autonomous
Board/Body cannot be put on par."

33. From a perusal of the aforesaid
judgment also it emerges that merely
because the autonomous bodies have
'adopted' the government service rules, the
same would not confer any right of the
employees of the autonomous bodies to
claim the same benefits as are admissible to
government employees inasmuch as they
would not fall within the ambit of being
government employees or in government
service.

33. Accordingly, keeping in view the
aforesaid discussion, no merit is found in
the writ petition. The writ petition is
accordingly dismissed.

34. The Court records the assistance
provided by Ms. Megha Sachan, Law Clerk
of this Court.
----------
(2023) 11 ILRA 571
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.11.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 6728 of 2023

Vijay Kumar Banswar ...Petitioner
Versus
Awadhesh Kumar Jaisawal ...Respondents

Counsel for the Petitioner:
Aakash Prasad, Amitav Singh, Himanshu Singh,
Yash Joshi

Counsel for the Respondents:
Shishir Chandra, Vishnu Pratap Singh

Civil
Law
-
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 21(1)(a) - Bonafide
Need - Eviction - Comparative Hardship -
Cross-Examination
-
Compensation:
Petitioner, a tenant running a machine parts
business for 37 years, challenged the Rent
Controller's order dated 13.12.2022 allowing
eviction under Section 21(1)(a) of the Act for