SUNIL AMBWANI, J. - (1.) HEARD Sri G.K. Singh for petitioner and Sri Indra Raj Singh as well as Sri Awadhesh Rai for private respondents. Learned standing counsel appears for respondent Nos. 1 and 2.
(2.) BRIEF facts, giving rise to this writ petition, are that on the death of Shri Ram Shanker Rai on 14 -2 -1985 a post of 'Lecturer' in Economics fell vacant, in Inter College Mohamadabad, District Ghazipur, soon thereafter on 30 -6 -1985, one post of lecturer in 'Hindi' fell vacant in the College on account of retirement of Sri Vindhyachal Rai. There were three teachers in L.T. Grade qualified for promotion namely Sri Nagendra Prasad Rai, Sri Ram Ji Rai and Sri Gorakh Ram, in order of their seniority. The committee of management vide its resolution dated 15 -9 -1985 resolved to promote Sri Nagendra Prasad Rai on the post of lecturer in 'Hindi', and Sri Ram Ji Rai as lecturer in 'Economics'. These promotions were recommended in 40% promotion quota and papers were forwarded to U.P. Secondary Education Service Commission for approval. By an order dated 11 -10 -1989, the U.P. Secondary Education Service Commission directed promotion of Sri Nagendra Parasad Rai as lecturer in 'Economics', and Sri Gorakh Ram to the post of lecturer in 'Hindi'. Aggrieved Sri Ram Ji Rai petitioner has filed this writ petition challenging the order of the Commission as violative of provisions of U.P. Secondary Education Service Commission Rules, 1983 (in short Rules, 1983). Before proceeding to consider the question raised in the writ petition it may be observed that Sri Nagendra Prasad Rai was qualified both for the post of lecturer in 'Hindi' and in 'Economics'. The petitioner Ram Ji Rai was qualified for the post of lecturer in 'Economic' and Sri Gorakh Ram was qualified for the post of lecturer in Hindi.
(3.) SRI G.K. Singh, counsel for petitioner submits that it is for the management of the college under Rule -4 of the Rules of 1983, to determine and to intimate to the Commission in the proforma given in Appendix 'A', and in the manner specified, the number of vacancies existing or are likely to fall vacant during the year of recruitment and the number of vacancies to be reserved for reserved categories in accordance with the Rules or Government Orders in educational institution. He submits that Rule -9 provides for procedure of appointment by promotion. Where a vacancy occurs, the teachers working in L.T. and C.T. Grade as the case may be, who possesses the minimum qualifications, and have put in atleast five years continuous service as teacher, on the date of occurrence of vacancy, shall be considered for promotion to the post in lecturer's grade or L.T. Grade as the case may be. The criteria of promotion is seniority subject to rejection of unfit. Sub -rule -3 provides that the management shall prepare a list of teachers, referred to in Sub -rule -(1) and forward it to the Commission, though the Inspector with a copy of seniority list, service records (including the character rolls) and a statement in proforma given in Appendix 'A'. Within three weeks, the Inspector shall clarify the facts and forward the list to the Commission. Sub -rules -5 provides that the Commission shall after calling for such additional information as it may be considered necessary intimate the name of the selected candidate or candidates, to the Inspector with a copy to the Manager of the institution and Sub -rule -6 provides that within ten days receipt of the intimation, the Inspector shall send the names of selected candidates to the Manager of the concerned institution and the Provisions of Sub -rules 3 and 6 of Rule -8 shall mutatis mutandis applied. Sri Singh submits that there is no bar, that the Management can, while passing the resolution, make a recommendation for promotion. The fact that the Committee of Management has to forward the statement, to the Commission and that the Commission is to consider the candidates for promotion on available vacancies, Commission must consider the case of promotion of the vacancies which have occurred irrespective of the point of time, these vacancies have arisen. Petitioner was senior to Sri Gorakh Ram, and thus he could not be denied the promotion when the Commission was considering the matter for promotion on the same date, and that it was just, and equitable to consider promotion in accordance with the seniority subject to their qualifications. Since petitioner was senior to Sri Gorakh Ram, he was entitled for promotion to the vacancy on the post of lecturer in economics. He has relied upon a Full Bench judgment in Smt. Basanti Gaur v. District Inspector of Schools, 1988 ALR 298.;