- (1.) Both the Appellant and Respondent No. 4 have laid their claims to the post of lecturer in History in National Inter College, Saiyad Raza, Varanasi (here-in-after referred to as the college), the vacancy of which 'occurred on 1-7-1988 due to retirement of Sri Triveni Lal Srivastava, who was holding that post till then. The authorised controller, acting as committee of management of the college, notified the vacancy vide his letter dated 16-6-1988 to the U.P. Secondary Education Service Commission (here-in-after referred to as the Commission) through the District Inspector of Schools (here-in-after referred to as the D.I.O.S.). The D.I.O.S., however, returned the papers pertaining to the vacancy vide his letter dated 26-9-1988 to the authorised controller as the papers were not complete. The authorised controller thereafter again submitted the papers pertaining to the notification of the vacancy to the D.I.O.S. vide his letter dated 28-11-1988. As more than two months have passed after the vacancy had occurred, the authorised controller decided to make appointment of an ad hoc lecturer (History) under Section 18(1)(b) of the U.P. Secondary Education Services Commission and Selection Board Act, 1982 (here-in-after referred to as the Act). The authorised controller proposed by his letter dated 12-12-1988 the name of the Appellant for appointment as ad hoc lecturer to the D.I.O.S. and the D.I.O.S. by his order dated 26-12-1988 approved the ad hoc appointment of the Appellant, who joined the said post on the same day, i.e. 26-12-1988. Respondent No. 4 made a representation against the above appointment of the Appellant before, the Dy. Director of Education. The Dy. Director of Education not having decided his representation, Respondent No. 4 filed a writ petition before this Court in which direction was issued to the Deputy Director of Education to decide the representation. The Deputy Director of Education, however, rejected the representation as not maintainable. The Respondent No. 4 filed another writ petition in which this Court again directed the Deputy Director of Education to decide on merit the representation of Respondent No. 4. The Deputy Director of Education this time allowed the representation of the Respondent No. 4 holding that he was entitled to be promoted to the post of lecturer in place of the Appellant. The Appellant thereupon filed a writ petition, which has been dismissed by the learned Single Judge. Hence this Special Appeal.
(2.) learned Counsel for the Appellant has submitted that on 16-6-1988 when the vacancy was notified by the authorised controller to the Commission and on the date when the vacancy occurred (1-7-1988) due to the retirement of Sri Triveni Lal Srivastava, Respondent No. 4 was not eligible being not possessed of a degree of M.A. (History) and as such, he was not entitled to be promoted to the post of lecturer. In this connection learned Counsel has placed reliance on Rules 4 and 9 of U.P. Secondary Education Services Commission Rules, 1983 (here-in-after referred to as the Rules). Relevant extracts of these Rules are as under 4. Determination and intimation of vacancies:- (1) The Management shall determine and intimate to the Commission, in the proforma given in Appendix "A" and in the manner hereinafter speicfied, the number of vacancies existing or likely to fall vacant during the year of recruitment and, in the case of any post, other than the post of the head of au institution, also the number of vacancies to be reserved for candidates belonging to the scheduled caste, scheduled tribes and other category of persons in accordance with the rules or orders issued by the Government in this behalf in regard to the educational institutions. 9. Procedure for appointment by promotion : (i) Where any vacancy is to be filled by promotion, all teachers working in L.T. or C.T. grade, who possess the minimum qualifications and have put in at least 5 years continuous service as teacher on the date of occurrence of vacancy shall be considered for promotion to the Lecturer or L.T. grade, as the case may be, without their having applied for the same. Note :- For the purpose of this sub-rule, service rendered in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to a lower post. (2) The criterion for promotion shall be seniority subject to the rejection of unfit. (3) The Management shall prepare a list of teachers, referred to in sub-rule (1), and forward it to the Commission through the Inspector with a copy of seniority list, service records including the charater rolls and a statement in the proforma given in Appendix 'A'. (4) Within three weeks of the receipt of the list from the Management under sub-rule (3), the Inspector shall verify the facts and forward the list to the Commission. (5) The commission shall, after calling for such additional information as it may consider necessary, intimate the name of the selected candidate or candidates to the Inspector with a copy of the Manager of the Institution. (6) Within 10 days of the receipt of the intimation from the Commission under sub-rule (5), the Inspector shall send the name of the selected cadidate (s) to the Manager of the concerned institution and the provisions of sub-rule (3) and (4) of Rule 8 shall mutatis mutandis apply. Relying on the above Rules the argument of the learned Counsel is that the relevant date with reference to which the eligibility of a candidate for promotion has to be seen is the date on which the vacancy occurred. As the vacancy admittedly occurred on 1-7-1988, the Respondent No. 4 was not eligible on that date being not possessed of a degree of M.A. (History), which is a minimum requirement for promotion to the post of lecturer in History.
(3.) learned Counsel for the Respondents has, on the other hand, made two submissions, namely (1) before the authorised controller decided to make ad hoc appointment under Section 18(1)(b), the Respondent No. 4 became eligible as his result of M.A. (History) was published on 18-8-1988 in which he was declared successful and an information to that effect was sent to the D.I.O.S. in August, 1988 itself. In fact a representation was made by Respondent No. 4 on 20-8-1988 before the D.I.O.S. ciaiming the post of lecturer of History on ad hoc basis on the ground that he is senior to the Appellant and has also passed the examination of M.A. (History); and (ii) The intimation of vacancy by the authorised controller on 16-6-1988 was returned by the D.I.O.S. to the authorised controller as the same was not complete and the authorised controller thereafter sent requistion of the vanancy again on 28-11-1988 to the D.I.O.S. It is with reference to the above dated 28-11-1988 that the eligibility of a candidate for promotion has to be considered.;