( 1 ) THE vexed question that begs determination in this Special Appeal is whether the third proviso to Section 16 (1) of the U. P. Secondary Education Service Selection Boards Act, 1982 and the notification No. 300/xv/72 (1)/90, Shiksha Anubhag-7, Lucknow, dated February 2, 1995 which enable appointment of the dependent of a teacher or other employee of an institution dying-in-harness 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. 7. 1995. The Committee of Management of the institution adopted a resolution on 10. 3. 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 impugnment 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-section (1) of Section 16 of the u. P. Secondary Education and 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 Section 9 of the U. P, Intermediate Education Act. 1921. Is ultra vires the Article 14 of the Constitution. The Notification dated 2. 2. 1995 was also struck down by the learned single Judge on the ground that it constituted Infraction of Article 14 of the Constitution.

( 3 ) WE have had heard counsel for the appellant and the learned Standing Counsel representing the State.

( 4 ) 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 schools and Intermediate Education. Earlier such appointments were governed by the intermediate Education Act. 1921 and regulations made thereunder. Section 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, 21c, 21d. 33, 33a and 33b, 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 16ee of 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 16g 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 Graduates Grade in accordance with the regulations made under subsection (4) of Section 9 of the said Act ). (2) Any appointment made in contravention of the provisions of s