Shishir Kumar, J. - (1.) HEARD Shri V.K. Singh, learned Counsel for the petitioner and learned Standing Counsel as well as Shri A.K. Gupta, Advocate appearing for the Committee of Management.
(2.) THIS writ petition has been filed for a writ of mandamus commanding the respondents to promote the petitioner on the post of Lecturer in Sanskrit in the institution. It appears that petitioner was appointed as Assistant Teacher in L.T. Grade in the year 1982 and in the year 1998, post of Lecturer in Sanskrit fell vacant due to the retirement of the permanent incumbent Smt. Sushila Devi Shashtri. Petitioner being Master of Arts in Sanskrit and B.Ed was fully qualified to be promoted on the post of Lecturer in Sanskrit on the said post. In the institution six posts of Lecturer have been sanctioned and out of six, three posts have already been filled up by way of direct recruitment, therefore, this vacancy was to be filled up under the 50% quota amongst the eligible candidate who were working in L.T. Grade. In spite of the requests made by the petitioner the claim of the petitioner for promotion was not forwarded then he submitted an application to the District Inspector of Schools as well as the relevant authorities for consideration of the claim of the petitioner for promotion. In the meantime, the respondent No. 5 has been adjusted in the institution on the promoted post for which the petitioner was entitled by the Commission. Petitioner submits that it is not permissible in law being a fact that unless and until a requisition to the Commission is sent by the institution for the purposes of making an appointment in a particular institution posts cannot be filled up by an adjustment. Reliance has been placed upon the Division Bench judgment of this Court reported in, 2006 (4) ESC 2786 (Satish Kumar v. State of U.P. and Ors.). Para 39 of the said judgment is being quoted below. For the reasons and the conclusions drawn hereinabove, our answer to Question No. 1 is: An unadvertised vacancy cannot be filled up from amongst the candidate who has been selected in any previous selections and to that extent we declare that the pronouncement of the learned Single Judge in the case of Savita Gupta v. State of U.P. and Ors., 2004 (2) UPLBEC 2739, does not lay down the law correctly and is hereby overruled. and to Question No. 2 is: The U.P. Secondary Education Services Selection Board constituted under the U.P. Act No. 5 of 1982 cannot, with the aid of the Government Order dated 12th March, 2001, order any adjustment in respect of a vacancy, which has been intimated and notified but not advertised.
(3.) IN such circumstances, learned Counsel for the petitioner submits that the claim of the petitioner has to be considered and the respondent No. 5 cannot be permitted to join in the institution.;