S.R.Singh, J. - (1.) THE dispute in the instant writ petition relates to appointment on the post of Lecturer in Sanskrit in Santan Dharm Inter College Sadar, Meerut (hereinafter referred to as the College). The vacancy on the post in question admittedly occurred upon retirement of the incumbent Sri Shiv Charan Sharma on 30 -6 -1990. The Petitioner, a permanent teacher in L.T. Grade in the college applied for appointment in the said vacancy, but in negation of his claim the Committee of management seems to have appointed Sri Bhagwan Devo Thakur, 4th Respondent on 23rd July, 1990 on ad hoc basis. The ground on which the Petitioner's claim for appointment to the said post atleast on ad hoc basis was a negated by the committee of management, was that he had not completed five years substantive service in L.T. Grade. It is not disputed before me that the Petitioner, though initially appointed in C.T. Grade, was given L.T. Grade with effect from 1 -1 -1986 and he is in continuous service since then. The first application that was given by the Petitioner for appointment on the post in question is dated 12 -7 -1990 annexed as Annexure -III to the writ petition. On 1 -2 -1991 he seems to have again pressed his claim for appointment on the ground that he had completed five years continuous service in L.T. Grade on 1 -1 -1991. This application of the Petitioner too did not find any favourable response from the committee of management and aggrieved by its inaction to redress his grievances, the Petitioner has filed the instant writ petition praying for a writ of mandamus commanding the Respondents No. 1,2 and 3 to promote him from LT. Grade to Lecturer Grade and further directing the District Inspector of Schools not to give approval to the direct appointment of the 4th Respondent on the post in question.
(2.) A counter affidavit has been filed by the 4th Respondent opposing the writ petition basically on the ground that the Petitioner having not completed five years continuous service in L.T. Grade on the date of occurrence of the vacancy i.e. 30 -6 -1990, was not qualified for promotion and therefore, the committee of management was free to make ad hoc appointment by direct recruitment under Section 18 of the U.P. Secondary Education Service Commission and Selection Boards Act, 1982. I have heard Sri A.N. Bhargava, learned Counsel for the Petitioner and Sri Vivek Chaudhary appearing for the Respondent No. 4. The main contention of the learned Counsel for the Petitioner is that even in case of ad hoc appointment under Section 18 of the aforesaid Act, the management is obliged to first fill a particular vacancy in the' Lecturer grade by promotion from amongst the qualified teachers working in the institution in L.T. Grade. He has placed reliance upon a Division Bench decision of this Court in Charu Chandra Tiwari v. District Inspector of Schools Deoria, 1990 UP LB EC 160, wherein it was held that there appears no rationale to exclude the method of filing the vacancies in accordance with Clause IV of U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 from Section 18 of the Act. The Division Bench has clearly held in Charu Chandra's case (supra) that even in case of ad hoc appointment under Section 18 of the U.P. Secondary Education Service Commission and Selection Boards Act, the management is obliged to follow the procedure contemplated by the first Removal of Difficulties Order 1981 which visualises that recourse to direct recruitment may be had only if qualified teachers are not available for filling the post by way of promotion.
(3.) SRI Vivek Chaudhary contended before me that both in accordance with Regulation 6(1) of Chapter II of the Regulations made under the U.P. Intermediate Education Act, 1921 and Rule 9 of the U.P. Secondary Education Service Commission Rules 1983, five years continuous service in L.T. Grade on the date of occurrence of the vacancy, is a pre -requisite condition for promotion to Lecturer Grade and the Petitioner, on admitted facts, was not possessed of this pre - -requisite condition on the date of occurrence of the vacancy. Thus according to Sri Vivek Chaudhary, learned Counsel for the 4th Respondent, the Petitioner cannot be said to be qualified for promotion and the management was justified in filling the vacancy by direct recruitment in absence of there being any other qualified teacher in the L.T. Grade. This contention of Sri Chaudhary, though apparently attractive, is not sustainable in law. As noticed above, the Division Bench in Charu Chandra's case (supra) has held that the method visualised by the U.P. Secondary Education Service (Removal of Difficulties), Order 1981 is to be followed even in case of appointment under Section 18 of the Act. A perusal of Clause 6 of the said Removal of Difficulties Order makes the intention of the legislature clear that for the purpose of ad hoc promotion it is not at all necessary that the teachers sought to be promoted must have continuous substantive service of five years in the grade, just below the grade to which promotion is sought to be made. The requirement of five years continuous service as visualised in Regulation 6(1) of Chapter II of the Regulations and/or Rule 9 of the U.P. Secondary Education Service Commission Rules, 1983, is a requirement of eligibility for regular promotion and not of essential qualifications, which are prescribed in appendix to Regulation 1 of Chapter II of the regulations. Admittedly the Petitioner holds a degree of Master Arts in Sanskrit and on that basis he is possessed of requisite qualifications for the post of lecturer in Sanskrit as prescribed in Appendix 'A' to Regulation 1 of Chapter II of the regulations. So far as the question of eligibility is concerned, that appears to have been done away with in case of ad hoc promotion to be made under Section 18 of the Act read with the provisions contained in U.P. Secondary Education Service Commission (Removal of Difficulties) order, 1981. Clause 6 of the said Removal of Difficulties Order being relevant for the purposes of the case is being quoted below: 6 Eligibility for Appointment. - Every appointment of a teacher under paragraph 4 or 5 shall be subject to the following conditions, namely: (a) The candidate sought to be appointed by promotion or by direct recruitment must fulfil the essential qualifications laid down in appendix -A referred to in the Regulation (1) of Chapter II of the Regulations made under the Intermediate Education Act, 1921: (b) The candidate sought to be appointed by direct recruitment under paragraph 5 shall not be related to any member of the committee of management in the manner indicated in schedule II to the Intermediate Education Act, 1921. (c) The candidate sought to be appointed by promotion under paragraph 4 must have been serving the institution in substantive capacity from before the date of commencement of this Order.;