R.K.AGRAWAL, J. - (1.) BY means of the present petition filed under Article 226 of the Constitution of India, the petitioner, Riyaz Ahmad Khan seeks a writ, order or direction in the nature of certiorari quashing the advertisement dated 21st August, 2003 and 22nd August, 2003, filed as Annexures -10 and 10A and also the order of the Managing Committee dated 7th August, 2003, filed as Annexure -7 to the writ petition. He further seeks a writ of mandamus directing the District Inspector of Schools, Ghazipur, Joint Director of Education (Madhyamik), Varanasi Region, Varanasi ; Additional Director of Education (Madhyamik), Allahabad ; Director of Education (Madhyamik), U.P., Lucknow and the Special Secretary, Education, Government of U.P., Lucknow for passing an order for promoting the petitioner to the post of the Lecturer after setting aside the order of the committee of management dated 7th August, 2003.
(2.) BRIEFLY stated, the facts giving rise to the present petition are as follows : In the district of Ghazipur there is a College, known as, Muslim Anglo Hindustani Inter College (hereinafter referred to as 'the College'). It has been established sometimes in the year 1937 and has been declared to be a minority institution in June, 1997. The petitioner claims to have been appointed as Assistant Teacher L.T. Grade on ad hoc basis on 22nd December, 1992. The appointment was made on the post held by one Mohammad Yusuf who was promoted as ad hoc Lecturer. When the approval was not forthcoming from the District Inspector of Schools, Ghazipur, the petitioner approached this Court by filing Civil Misc. Writ Petition No. 10278 of 1994 which was disposed of vide judgment and order dated 17th January, 1995, directing the District Inspector of Schools to pass a reasoned order after receiving a fresh representation from the petitioner. Pursuant thereto, the District Inspector of Schools vide order dated 16th August, 1995, granted approval. He, however, reviewed his order dated 16th August, 1995 and cancelled the same vide order dated 17th May, 1997. A consequential order was passed by the Manager of the College on 7th July, 1997. Both the orders, i.e., 17th May, 1997 and 7th July, 1997, were challenged by means of Civil Misc. Writ Petition No. 21910 of 1997 which was allowed vide judgment and order dated 4th December, 1998. This Court held that the petitioner is entitled to continue on ad hoc basis until the vacancy is converted into a substantive vacancy and is also entitled to get his salary. Against the judgment and order dated 4th December, 1998 aggrieved persons other than the petitioner preferred a Special Appeal No. 125 of 2000 which is said to be still pending in which no interim order has been passed. The petitioner is getting salary. In the meantime, it appears that a post of Lecturer in the College fell vacant. The petitioner claims that it is to be filled up by way of promotion and accordingly he made an application on 9th July, 2003. The claim of the petitioner has been rejected by the committee of management on the ground that the petitioner is an ad hoc appointee as his appointment has not been regularised and he had not been appointed on a substantive vacancy and on the date of the occurrence of vacancy, he has not completed 5 years. The petitioner has made a representation to the District Inspector of Schools on 16th August, 2003, which is said to be still pending. The committee of management treating the vacancy in the Lecturer grade as one to be filled up by way of direct recruitment, has advertised it on 21st August, 2003 and 22nd August, 2003. According to the petitioner, the said vacancy is to be filled up by way of promotion and he being eligible and entitled is liable to be promoted. The action of the committee of management in advertising the post of Lecturer for being filled up by way of direct recruitment is under challenge in the present writ petition. I have heard Sri S.K. Verma, learned senior advocate, assisted by Sri Siddharth Verma, and the learned standing counsel representing the respondent Nos. 2 and 3.
(3.) THE learned counsel for the petitioner submitted that admittedly the college in question is a minority institution and, therefore, the provisions of the U.P. Secondary Education Services and Selection Board Act, 1982 (hereinafter referred to as 'the 1982 Act') is not applicable in view of the specific provision made in Section 30 of the 1982 Act. According to him, if the provisions of the 1982 Act are not applicable to the college in question, his appointment in the year 1992 should be treated as one having been made in substantive capacity and, therefore, he is entitled for being promoted on the post of Lecturer in the said college. His further submission is that his appointment cannot be treated under the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. According to him, the concept of ad hocism is by virtue of the provisions of the 1982 Act and the Removal of Difficulties Orders issued by the State Government from time to time is not applicable in the case of a college run by the minority. He relied upon the provisions of Regulation 5 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the 1921 Act') and submitted that 50% of the total number of the sanctioned posts in the Lecturer grade, have to be filled up by way of promotion and, therefore, he is entitled for being promoted. According to him, under Section 3 (1) (a) of the Regulations framed under the 1921 Act the seniority list has to be prepared for each grade of teachers and it does not exclude the ad hoc appointment. He relied upon the decision of the Hon'ble Supreme Court in the case of Suraj Prakash Gupta and Ors., etc. v. State of Jammu and Kashmir and Ors., AIR 2000 SC 2386, wherein the Hon'ble Supreme Court held that ad hoc/stop gap services rendered by the promotees beyond six months and without the consent of the Public Service Commission cannot be treated as non -estp2;