- (1.) Heard learned counsel for the parties and perused the record.
(2.) By means of the present writ petition, the prayer is to issue writ of certiorari quashing the impugned order dated 8.12.2008 passed by respondent no. 2 by which a resolution for promotion of respondent no. 7 on the post of Lecturer in History has been approved. With further prayer to issue a mandamus directing the respondent no. 2 to give promotion to the petitioner, being a senior most teacher in L.T.grade, on the post of Lecturer in History vacancy of which occurred on 30.6.2001 after retirement of one Sri Brahmanand Verma under 50% promotional quota and further to issue a mandamus directing the respondent no. 2 to accord notional promotion to the petitioner on the post of Lecturer in History and also give consequential benefits to the petitioner.
(3.) Case of the petitioner is that the institution known as Agrasen Inter College, Harduagunj, District Aligarh (hereinafter referred to as 'institution') is a recognised institution, hence, the same is governed under the provisions of U.P. Intermediate Education Act 1921 and U.P. High School & Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act 1971 ( Act No. 24 of 1971 ). Petitioner was initially appointed in the institution as Assistant Teacher in C.T.grade on 1.11.1974 and worked upto 20.5.1975. Thereafter he was again appointed in C.T.grade on 1.9.1975 and worked upto 15.11.1976 and thereafter again he was appointed in C.T.grade on 30.12.1976 since then he is working continuously as Assistant Teacher. His qualification is M.A. in two subjects History and Economics and also completed in B.Ed. in the year 1974. Since 1989, the petitioner was teaching History in the Intermediate classes. Subsequently, he was stopped from teaching History in Intermediate classes by the respondent no. 5 Committee of Management with ulterior motive to give benefit to other person. One Sri Brahmanand Verma, Lecturer in History was retired on 30.6.2001 and as such a vacancy arose on the post of Lecturer in History in the institution and since the vacancy was under 50% promotional quota, the same was required to be filled up by promotion of the senior most L.T.grade Assistant Teacher having qualification for the post. Petitioner was senior most Assistant Teacher in L.T.grade and was qualified for promotion and there was no Scheduled Caste or Scheduled Tribe candidate available in the institution. In spite of repeated representation, claim of the petitioner was not considered by the Committee of Management to pass a resolution and sent for approval to the District Inspector of Schools for promotion on the post of Lecturer in History. Subsequently, a resolution was passed on 4.7.2004 recommending the name of one O.B.C. Candidate Sri Kishan Singh, respondent no. 7, who was junior to the petitioner for promotion under reservation quota. Though under the provisions, no reservation is applicable in promotion for appointment under the promotional quota. The reservation is applicable only in direct recruitment and as far as reservation of Scheduled Caste/ Scheduled Tribe is concerned, only that will be applicable according to roster system. Since no Scheduled Caste/ Scheduled Tribe candidate was available, hence, being the senior most, only the petitioner was entitled to be promoted because he was eligible to be appointed as Lecturer in History. Petitioner filed a writ petition no. 38334 of 2004 which was disposed off on 20.9.2004 with the direction to respondent no. 2 Regional Joint Director of Education, Aligarh Region, Aligarh to decide the petitioner's representation after calling the comments from the authorities concerned including the Committee of Management. In spite of repeated representation given to respondent no. 2, claim of the petitioner was not considered. However, respondent no. 2 by letter dated 7.2.2005 directed respondent no. 3 District Inspector of Schools, Aligarh to make available the resolution for petitioner in respect of promotion on the post of Lecturer in History which has been filed as annexure 3 to this writ petition. In spite of that , the resolution regarding promotion of the petitioner was not passed. Meanwhile respondent no. 5 forwarded the resolution dated 4.7.2004 for promotion of respondent no. 7 on the post of Lecturer in History under O.B.C. Quota. Thereafter, written argument/reply was filed by the petitioner before the respondent no. 3 on 30.6.2006 but he did not proceed on it. On 7.1.2008 Respondent no. 2 again directed the respondent no. 3 to produce the resolution of senior most L.T.grade teacher for promotion on the post of Lecturer in History. In compliance of which, the respondent no. 3 wrote a letter dated 20.1.2008 to the Committee of Management to send resolution of senior most teacher for promotion. In the meantime, another vacancy on the post of Lecturer in Economics had occurred on 30.6.2008 on account of retirement of one Sri Suresh Chand Mittal under 50% promotional quota. Being a senior most L.T.grade teacher, petitioner was qualified to be promoted as Lecturer in Economics also. Representation was also made to respondent no. 5 on 26.9.2008 for promotion, however, no final decision was taken for promotion of the petitioner either on the post of Lecturer in History or on the post of Lecturer in Economic. Another writ petition no. 61347 of 2008 was filed by the petitioner. Subsequently, by impugned order dated 8.12.2008 approval was given regarding the selection of respondent no. 7 for promotion, which is illegal and without jurisdiction.;