R. A. Sharma, J. - (1.) ON account of retirement of Economics lecturer on 30-6-1985 the post of lecturer in Economics fell vacant In Shri Krishna Pathshala Intermediate College Azamgarh (hereinafter referred to as the college). ON 1-7-1985 the Committee of Management sent a requisition to the District Inspector of Schools (hereinafter referred to as D.I.OS.) for selection of a lecturer in Economics by Secondary Education Commission. The D.I.O.S. by letter dated 31-10-1985 recommended the name of reserve-pool teacher for appointment against the aforesaid vacancy, but the teacher declined to join the college, and D.I.O.S. thereupon sent a requisition to the Secondary, Education Commission, through Deputy Director of Education for selection of Economies lecturer.
(2.) SECTION 18 of the U. P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter referred to as Act) provide for the appointment of a teacher ) on ad-hoc basis if the management has notified the vacancy to the Commission under the Act and the Commission has failed to recommend a suitable candidate for appointment within one year or the post of such teacher has actually remained vacant for more than two months. Sub-section (1) of SECTION 18 is quoted below : "(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and- (a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification ; or (b) the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad-hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulation made thereunder.'' As no selection has been made by the Commission and the post remained vacant for more than two months, the management decided to make ad-hoc appointment and applications were accordingly invited on 1-4-1986 for appointment of a lecturer in Economics by direct recruitment on ad-hoc basis. Sri Narendra Singh, respondent No. 4, ;was selected on 6-7-1986 as lecturer in Economics and appointment letter dated 8-7-1986 was issued to him by the management. The petitioner, who is a teecher in the College, has filled this writ petition for quashing the appointment letter issued to respondent no. 4 and for consideration of his name for promotion to the post of lecturer in Economics. Relying on the decision of a Division Bench of this court in Charu Chandra Tiwari v. District Inspector of Schools, 1990 AWC (Vol. I) 310= 1990 LB and EC 160, the learned counsel for the petitioner has argued that a vacancy on ad-h0c basis under Section 18 has to be filled by promotion and the method of direct recruitment can be adopted only if eligible teachers for promotion are not available and as the petitioner is senior most teacher eligible for promotion to the post of lecturer, he should have been promoted and selection by direct recruitment of respondent no. 4, as such, is void. The contention of learned counsel for respondent no. 4, on the other hand, is that the petitioner was not eligible on the relevant date and is not entitled to be promoted. Under clause (b) of Sub-section (1) of section 18 a person in order to be appointed must possess the qualifications prescribed in the Intermediate Education Act or Regulations made thereunder. Appendix-A to Chapter II of Regulations framed under the Intermediate Education Act lays down minimum qualifications for appointment of a teacher in Intermediate college. For lecturer minimum qualification is M. A. The petitioner was not having M. A. degree but his case is that he appeared in M. A. examination some time in April, 1986 and was declared pass on 11-7-1986, the consequence of which is that the petitioner shall be deemed to have passed the M. A. examination sometime in April, 1986, as the result of the examination dates back to the date of the examination.
(3.) IT has already been settled by a Division Bench of this Court in Charu Chandra Tiwari v. District Inspector of Schools (supra) that vacancy under section 18 (1) (b) has to be filled by promotion and direct recruitment cannot be made unless a teacher in the institution is not eligible for promotion. The questions for consideration are whether the petitioner was eligible on the relevant date and what is relevant date with reference to which eligibility has to be seen. Under section 18 (1) (b) the management gets rights to make ad-hoc appointments, the post has actually remained vacant, for more than two moaths. The date on which the management, after expiry of more than two months from the date of vacancy, decides to make ad-hoc appointment under section 18 (1) (b), is the relevant date with reference to which eligibility for purposes of promotion is to be seen. If on this date a teacher is eligible for promotion he has got to be promoted and no appointment by direct recruitment can be made under this provision. However, if eligible teacher for promotion is not available on the aforesaid date, the management will have full right to make ad-hoc appointment by direct recruitment. In the instant case the exact date on which the management decided to make ad-hoc appointment has not been disclosed by the parties, but it is clear from paragraph 15 of the counter affidavit of respondent no. 4 that on 1-4-1986 the vacancy was notified for inviting applications in pursuance of which the respondent no. 4 and others applied. The petitioner, not being M.A., was not eligible on or before 1-4-1986, and could not have been promoted. The management was, as such, fully justified to invite applications for making appointment by direct recruitment. Once the process for direct appointment has been initiated, it cannot be reversed. As held by Honourable Supreme Court in A. A. Calton v. Director of Education, AIR 1983 SC 1143, process of selection, commencing from a stage of calling for the applications for a post up to the date on which the employer becomes entitled to make selection, is an integrated one and at every stage in that process certain rights are created in favour of one or the other of the candidates. It is true that by making application for the post, one does not get right for the same; but a right to get his case considered in accordance with the terms and conditions of advertisement is created in his favour. This right cannot be taken away unless there is the law which provides otherwise. This principle has been reaffirmed by Honourable Supreme Court in P. Mahendran v. State of Karnataka AIR 1990 SC 405. The relevant extract from page 412 of this decision is quoted below : "It is true that a candidate does not get any right to the post by merely making an application for the same, but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with the recruitment rules he acquires right to be considered for selection in accordance with the then existing rules." ;