# Gupta v. Susma Ghose, 1990 ACJ 607

- **Citation:** (2000) 2 ILRA 23
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-02-21
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gupta-v-susma-ghose-1990-acj-607-39233
- **Pages:** 7

## Text

2All] Ved Prakash Tyagi V. Ist A.D.J., Pilibhit and another
23
lessor provides other amenities or furniture
in addition to the accommodation which has
been let out, unless the intention of the parties
is that the amount fixed for providing such
amenities be also treated as rent, the amount
taken separately for furniture and other
amenities may not form part of rent. Normally
the electricity charges are taken by the
landlord for the purpose that he is providing
electricity to the tenant and for such facility
he has to pay the amount of electricity charges
to the Electricity Board or such authority from
whom the electricity connection has been
taken and the landlord is liable to pay for the
consumption of electricity by the tenant. In
absence of any specific agreement or proof in
this respect it cannot always be termed that
the amount of electricity charges forms part of
the rent.

6. Learned counsel for the respondent has
placed reliance upon the decision Puspa Sen
Gupta v. Susma Ghose, 1990 ACJ 607,
wherein it has been held that the additional
sum of Rs.8/- per month agreed by the tenant
to be paid to the landlord may. Amount as
part of the rent. This was based on the
interpretation of the provision of sub-section
(3) of Section 8 of the West Bengal Premises
Rent
Control
Act.
This case has no
application to the facts of the present case
where the plaintiff has to prove that the
amount was liable to be paid by the petitioner
as part of the rent

7. The next question is as to whether the
tenant is also liable to deposit the amount of
electricity charges for claiming the benefit of
sub-section (4) of Section 20 of the Act.
Section 7 of the Act provides that water tax
shall form part of the rent. In Kumud Kumar
Kaushik v. IV Additional District Judge,
Ghaziabad and others, 1991 (2) ARC 354, it
has been held that for claiming the benefit of
Section 20(4) of the Act a tenant is not
required to deposit the amount of house and
water tax. Similarly, the tenant while claiming
the benefit of Section 20(4) of the Act is not
required to deposit the amount of electricity
charges. The petitioner having deposited the
entire amount of rent as claimed in the relief
clause 'b' of the plaint, is entitled to the
benefit of provision of Section 20(4) of the
Act.

8. In view of the above, the writ petition is
partly allowed. The orders passed by the
courts below dated 30.8.1991 and 21.2.1998
in respect of ejectment of the petitioner are
hereby quashed.

9. Considering the facts and circumstances
of case the parties shall bear their own cost.

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By the Court

1.
The
vexed
question
that
begs
determination in this Special Appeal is
whether the third proviso to Sec. 16 (1) of the
U.P. Secondary Education Service Selection
Boards Act, 1982 and the Notification No.
300/XVI/72 (1) /90 Shiksha Anubhag-7
Lucknow dated Feb 2 1995 which enable
appointment of the dependent of a teacher or
other employee of an institution dying-inharness as a teacher in trained graduate grade,
are ultra-vires the Constitution.

2. A brief sketch of necessary facts giving
rise to Special Appeal No. 426 of 1998 is that
the appellants father, Sri Narain Prasad
Dubey, a Science demonstrator in Sri Radha
Ballabh Inter College Phaphund in the district
of Etawah, was spirited away by death while
in harness on 31.12.1993. The appellant
staked
his
claim
for
compassionate
appointment as demonstrator in the institution
vide application dated 24.07.1995. The
Committee of Management of the institution
adopted a resolution on 10.03.1996 for
appointing the appellant as demonstrator on
compassionate ground. The resolution passed
by the Committee of Management was
frowned upon with disapproval on the
premises that the appellant fell short of
requisite training in order to qualify for
appointment as a teacher. The appellant was
communicated
with
accordingly
by
the
District Inspector of Schools vide letter dated
30.9.1997 which was made the subject matter
of impingement in the writ petition from
which has stemmed the instant special
appeal.. The learned Single Judge held the
view that the third proviso to sub-sec (1) of
Section 16 of the U.P. Secondary Education
& Service Selection Boards Act, 1982 which
enables appointment of the dependent of a
teacher or other employees of an Institution
dying-in-harness as a teacher in trained
graduate grade in accordance with the
regulations made under sub-section (4) of Sec.
9 of the U .P. Intermediate Education Act,
1921, is ultravires the Article 14 of the
constitution. The Notification dated 2.2.95
was also struck down by the learned Single
Judge on the ground that it constituted
infraction of Art. 14 of the Constitution.

We have had heard counsel for the
appellant and the learned standing counsel
representing the State.

3. The U.P. Secondary Education Service
Selection Boards Act, 1982 encapsulates
provisions for appointments of teachers in the
secondary institutions recognised by the U.P.
Board of High School and Intermediate
Education. Earlier such appointments were
governed by the Intermediate Education Act.
1921 and regulations made thereunder. Sec.
16 of the Act being germane to the vexed
question under consideration is excerpted
below:

" 16. Appointment to be made only on the
recommendation
of
the
Board-
(1)
Notwithstanding anything to the contrary
contained in the Intermediate Education Act,
1921 or the regulations made thereunder but
subject to the provisions of Sections [ 18,21B], 21-C, 21-D, 33, 33-A and 33-B, every
appointment of a teacher shall, on or after the
date of commencement of the U.P. Secondary
Education
Services
Selection
Boards
(Amendment) Act, 1995 be made by the
management only on the recommendation of
commission ]

Provided that in respect of retrenched
employees, the provisions of Section 16-EE of
2All] Sanjeev Kumar Dubey V. D.I.O.S., Etawah and others
25
the Intermediate Education Act. 1921,
shall mutatis mutandis apply.

Provided further that the appointment of a
teacher by transfer from one institution to
another, may be made in accordance with the
regulations made under clause (c) of subsection (2) of Section 16- of the Intermediate
Education Act, 1921.

[Provided also that the dependent, of a
teacher or other employee of an institution
dying
in
harness,
who
possess
the
qualifications
prescribed
under
the
Intermediate Education Act, 1921 may, be
appointed as teacher in Trained Graduate's
Grade in accordance with the regulations
made under sub-section (4) of Section 9 of the
said Act]

(2)
Any
appointment
made
in
contravention of the provisions of sub-section
(1) shall be void.

4. The third Proviso to sub-section (1) of
Sec. 16 was inserted by the U.P. Act 15 of
1995 with effect from 28.12.94 Sub-section
(1) of Section 16 envisages that subject to the
provisions of Sec. 18, 21-B, 21-C, 21-D, 33,
33-A and 33-B, every appointment of a
teacher is to be made by the management only
on the recommendations of the Selection
Board
constituted

under
the
Act
notwithstanding anything to the contrary
contained in the Intermediate education Act,
The third proviso to sub- section (1) however,
carves out an exception to this method of
recruitment in respect of dependants of
teachers or other employees of an institution
dying in harness and postulates that such
dependent may be appointed as a teacher in
the trained graduate grade in accordance with
the regulations made under sub-section (4)
of Sec 9 of the U.P. Intermediate Education
Act. 1921.

5. In Direction of Education (Secondary)
v. Pushpendra Kumar1 the quintessence of
what has been held is that the provision for
grant of compassionate employment which
savours of the nature of an exception to the
general provision, does not unduly interfere
with the right of other persons who are
eligible for appointment to seek employment
against the posts which would have been
forthcoming to them but for the provisions
enabling
appointment
being
made
on
compassionate grounds of the dependant of a
deceased employee. Regard being had to the
social justice objective sought to be achieved
by the revisions providing for compassionate
appointment, we feel persuaded to the view
that the third proviso to sub-sec (1) of sec.16
which provides a different procedure of
appointment to L.T. grade in respect of
dependants of a teacher and other employees
in an institution dying in harness, is not in
antagonism of Article 14 of the Constitution.
In Umesh Kumar Nagpal v. State of
Haryana2 the Supreme Court held that the
provision of compassionate employment in
the lowest post by making an exception to the
general
rule
of
appointment
could
be
justifiable and valid in the favourable
treatment given to dependants of the deceased
employees has a rational nexus with the object
sought to be achieved viz. relief against
destitution. The exception made in favour of
the deceased employee was vindicated on the
ground that it would be in consideration of the
services rendered by him and the legitimate
expectations, and the change in status and
affairs of the family engendered by the
erstwhile employment which are suddenly
upturned.

6. The appointment as a teacher in the
trained graduate grade in an Institution
recognised
under
the
U.P.
Intermediate
Education Act, 1921 is an appointment in the
lowest grade of teaching staff of secondary
institutions after the abolition of C.T grade. It

1 JT 1998 (4) SC 155,
2 JT 1994 (3) SC 525,
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
26
cannot be gain-said that appointment under
the proviso may be made only if the candidate
is equipped with the qualifications prescribed
under the Intermediate Education Act, 1921.
The essential qualifications have not been
dispensed with. The procedure for such
appointment is laid down in regulations 105
and 106 of Chapter III of the Regulations as
they
stand
substituted
by
impugned
notification dated Feb 2, 1995 issued in
exercise of power under Sec 9 (4) of the U.P.
Intermediate Education Act. It forms a class
in itself and the classification so made has a
reasonable and rational nexus with the object
sought to be achieved viz. relief against
destitution as held in Umesh Kumar Nagpal
(supra). The procedure as laid down in
regulation 105 of Chapter III of the
Regulations made under the U.P. Intermediate
Education Act visualises selection by a duly
constituted Selection Committee consisting of
the
District
Inspector
of
Schools,
the
Lekhandhikari, office of District Inspector of
Schools and Zila Basic Shiksha Adhikari.
Since a teacher serves as a melting pot in
shaping the career, character and weaving
moral fibre and aptitude for educational
excellence in impressionable young children
and being principal instrument to awakening
the child to the cultural ethos, intellectual
excellence
and
discipline
the
enabling
provision contained in the third proviso to
sub-sec (1) of Section 16 of the Act and those
contained in regulations 105 and 106 of
Chapter III of the Regulations made in
exercise of power under Sec. 9 (4) of the U.P.
Intermediate Education Act must be so
construed as to enable the selection committee
to select the dependant only if he is found
suitable. The third proviso to sub-sec (1) of
Sec. 16 of the Act is only an enabling
provision and the word 'may' used in the
proviso imparts discretion in the Selection
Committee referred to in regulation 105 to
select the dependant of a teacher or other
employees dying in harness for appointment
in trained graduate grade only if the candidate
is found by the Selection Committee suitable,
qualified
for
and
deserving
of
such
appointment. In our opinion, therefore the
third proviso to sub-sec (1) of Sec. 16 and the
Notification dated 5.2.98 by which regulation
103 to 107 of Chapter III of the Regulations
made under the U.P. Intermediate Education
Act were substituted are not ultravires the
Article 14 of the Constitution. Broader
perspective of social justice sought to be
achieved by these provisions must be borne in
mind while examining the reasonableness of
the classification made by the legislature.

7. In Prabodh Verma v. State of U.P.,3
the Supreme Court has laid the test of a valid
classification in the following words:

" The principle underlying the guarantee of
Art. 14 is not that the same rules of law
should be applicable to all persons within the
territory of India irrespective of differences of
circumstances. It only means that all persons
similarly circumstance should be treated alike
and there should be no discrimination
between one person and another if as regards
the subject matter of the legislation, their
position is substantially the same. By the
process of classification, the State has the
power to determine who should be regarded
as a class for the purposes of legislation and in
relation to a law enacted on a particular
subject. The classification to be valid,
however, must not be arbitrary but must be
rational. It must not only be based on some
qualities or characteristics which are to be
found in all the persons grouped together and
not in others who are left out but those
qualities or characteristics must have a
reasonable nexus or relation to the object of
the legislation. In order to pass the test, two
conditions have to be fulfilled, namely,: (1)
that the classification must be founded on an
intelligible differentia which distinguishes
those that are grouped together form others
and (2) the differentia must have a rational
nexus or relation to the object sought to be
achieved by the legislation (see in re The

3 AIR 1985 SC 167
2All] Sanjeev Kumar Dubey V. D.I.O.S., Etawah and others
27
Special Courts Bill, 1978 (1979) 2 SCR 476
535:AIR 1979 SC 478 at P. 509)

8. The impugned provisions satisfy the
tests aforestated.

9. In Director of Education (supra) the
impugned notification dated 2.2.95 was not
held violative of Art. 14. In that case, some of
the respondents therein, were appointed on
class- 4 posts on compassionate ground.
Subsequently, they filed writ petition seeking
appropriate
order/direction
for
being
appointed on class-3 posts on the ground that
they
were
possessed
of
the
requisite
qualification for promotion on class-3 posts of
clerk. The High Court quashed the order of
such appointment and directed that they be
appointed on class 3 posts provided they were
possessed of necessary qualification for the
post super-added with a command to create a
post in case the vacancies were not available.
The Supreme Court viewed the direction
given by the High Court with disapproval
holding that if the regulations were so
construed they would be open to challenge on
ground of being violative of the right to
equality
in
the
matter
of
employment
inasmuch as other persons who are eligible for
appointment
and
who
may
be
more
meritorious than the dependants of deceased
employees, would be balked of their right of
being considered for such appointment under
the rules. The provisions were not struck
down by the Apex Court. Instead, they were
rationalised by construing to mean that in the
matter of appointment of a dependant of a
teaching/non-teaching
staff
in
nongovernment
recognised
aided
institutions
dying in harness, if a post in class-3 is not
available in the Institution in which the
deceased
was
employed
or
any
other
institution in the district, the dependant would
be appointed on a class-4 post in the
institution in which the deceased employee
was
employed
and
for
the
purpose,
supernumerary post in class-3 would be
created. The language employed in the third
proviso to sub-sec (1) of Sec 16 of the Act
does not confer an absolute right in the
dependent of a teacher and other employee of
an Institution dying in harness who is
possessed of prescribed qualification to claim
appointment as a teacher in the trained
graduate grade as of right. The selection
Committee referred to in regulation 105 can
reject the claim of the dependant if he is not
found suitable for the job.

10. True, the language used in regulation
106 of Chapter III of the Regulations as it
stands substituted by notification dated 2.2.92
is of mandatory character but it is settled by a
catena of decisions of the Supreme Court that
a compassionate appointment cannot be
claimed as a matter of course irrespective of
the financial status of the family of the
deceased and qualifications and suitability of
his
dependant
seeking
compassionate
appointment. A construction, which leads to
invalidity of a statutory provision, should be
avoided. The gloss of construction which we
are putting on the impugned provisions will
go a long way to strike a reasonable balance
between the interest of the family of the
deceased and that of the student community
without
unduly
encroaching
upon
the
fundamental right of equality of opportunity
of other eligible and qualified persons.

11. Without meaning disparagement to the
learned Single Judge, the view taken by him
on the validity of the third proviso to Sec. 16
(1) of the U.P. Secondary Education Service
Selection Boards Act, 1982 and the G.O,
dated 2.2.95 does not commend itself for
acceptance. We, however, forbear from
expressing any opinion as to whether the
appellant could be appointed on the post of
demonstrator for the question has not been
delved into by the learned Single Judge and in
our opinion, the matter should be relegated to
the Single Judge for decision of the writ
petition de novo.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
28
SPECIAL APPEAL NO . 510 OF 1998

12. In so far as Special Appeal aforestated
is concerned, suffice it to say that the learned
Single Judge allowed the writ petition filed by
the Committee of Management vide judgment
under challenge in this appeal in view of his
judgment in the case of Sanjeev Kumar
Dubey v. District Inspector of Schools and
ors. (supra) holding that no appointment of a
teacher can be made under dying in harness
rules and that any rule permitting such
appointment is ultravires the Article 14 of the
Constitution. The facts of this case are that
the District Inspector of Schools, Deoria by
his order dated 31.12.97 appointed the
appellant as Asstt. Teacher in untrained grade
in Janta Junior High School Mail Deoria
taking cue from the provisions contained in
the G.O. dated 31.1.97 referred to in the
appointment
order
dated
31.12.97. The
Committee of Management, however, despite
reminders from the office of the Zila Basic
Shiksha Adhikari Deoria declined to permit
the appellant herein to join his duties in the
institution who filed a writ petition being writ
petition No. 7041 of 98 which came to be
disposed of vide judgment and order dated
5.3.98 with a direction that in case a
representation was filed by the Committee of
Management, the same would be disposed of
by the Zila Basic Shiksha Adhikari in
accordance with law. The Zila Basic Shiksha
Adhikari, by his order dated April 25, 1998
rejected the representation. The said order was
challenged in the writ petition-giving rise to
Special Appeal No. 510 of 1998.

13. It brooks no dispute that the
provisions for compassionate appointment as
Asstt. Teacher in Basic Schools is provided in
the Government Order no. 231/XV-6-97-28
(66) /90 Shiksha (6) Anubhag, Lucknow dated
Jan, 31. 1997. The learned Single Judge
without adverting himself to this G.O. was
pleased to allow the writ petition filed by the
Committee of Management holding that any
rule permitting compassionate appointment
would be ultravires the Art. 14 of the
Constitution. The view taken by the learned
Single Judge cannot be viewed in approval in
view of what we have discussed in Special
Appeal No. 426 of 1998. The appeal
therefore, merits to be allowed.

CIVIL MISC . WRIT PETITION NO.
35079 OF 1999

14.
The
petition
aforestated,
though
cognisable by a Single Judge Bench, has
come up before us in view of the order dated
18.8.99 passed by the learned Single Judge
directing the matter to be taken up along with
the Special Appeal No. 510 of 1998 Alok
Kumar v. State of U.P. The writ petitioner
staked
his
claim
for
compassionate
appointment and his application, it is alleged,
was forwarded to the District Inspector of
Schools.
Since
the
petitioner
seeks
appointment as an Asstt. Teacher in L.T.
grade in an intermediate college, such
appointment would be governed by the
provisions contained in the third proviso to
Sec. 16 (1) of the U.P. Secondary Education
Service Commission and Selection Boards
Act, 1982 and regulations 103 to 106 of
chapter III of the Regulations made under the
U.P. Intermediate Education Act as amended
by Notification dated 2.2.95 which in our
opinion, is intra-vires. The matter, however,
needs to be considered by the Selection
Committee referred to in regulation 105 of
Chapter III of the Regulations made under
Sec. 9 (4) of the U.P. Intermediate Education
Act. 1921 in the light of the observations
made in this judgment while discussing the
case of Special Appeal No. 426 of 1998.

15. As a result of foregoing discussions,
the Special Appeals and the Writ Petition are
disposed of in the following manner.

(1) Special Appeal No. 426 of 1998 is
allowed. The order of the learned Single
Judge is set aside. The matter is remitted to
the appropriate Single Judge Bench for
2All] Raghvendra Lal Srivastava V. Principal Secretary (Education) and another
29
decision afresh in accordance with law and
in the light of the observations made in this
judgment;

(2) Special Appeal No. 510 of 1998
succeeds and is allowed. The impugned order
passed by the learned Single Judge is set
aside. The matter is remitted to the
appropriate Single Judge Bench for decision
of the writ petition afresh in accordance with
law and in the light of this judgment; and

(3) Writ petition No. 35079 of 1999 is
disposed of with the directions that in case the
petitioner stakes his claim for compassionate
appointment as Asstt Teacher, his case will be
considered
by
the
Selection
Committee
referred to in regulation 105 of Chapter III of
the Regulations made in the U.P. Intermediate
Education Act. 1921 and the Notification
dated 2.2.95.

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By the Court

1. The Petitioner is posted as Senior
Assistant in the office of district Non Formal
Education Officer, Basti. He is a heart patient
He had to undergo open - heart surgery on
21.4.93. at Sanjay Gandhi Post Graduate
Institute of Medical Sciences, Lucknow (in
brief SGPGI ) He moved an application on
7.7.93 to respondent no.1through District
Basic Education Officer, Siddharth Nagar
claiming reimbursement of the amount spent
by him on open-heart surgery in pursuance
of
U.P.
Government
services
(Medical
Attendance) Rules 1946 He submitted original
receipts and documents in support of
expenses incurred in the operation. The
District Basic Education Officer forwarded
the letter to the Additional Director of
Education (Basic) Allahabad. When nothing
was
heard
the
petitioner
filed another
application on 24.9.93 which was forwarded
by the District Basic Education Officer,
Siddharth
Nagar
on
12.10.1993
who
forwarded it to Additional Director (Basic)
Allahabad to take appropriate action so that
the claim of the petitioner could be settled.
The Director of Education,. U.P., Allahabad
with reference to the letter dated 12.10.1993
wrote a letter on 25.1.1994 to District Basic
Education Officer, Siddharth Nagar asking for
the
records
of
petitioner
and
the
recommendation made by Director of Medical
Health and Family Welfare, U.P. The
petitioner along with letter dated 4.2.1994