U.C.Srivastava, J. - (1.) THE order of District Inspector of Schools who redecided the matter in pursuance of a mandamus issued by this Court disapproving the promotion of the petitioner, a teacher in Union Intermediate College. Ram Nagar, District Barabanki, and thereby approving the opposite party No. 4 to the said grade in the same institution has led the filing of this petition by the petitioner. In response to an advertisement inviting applications for trained or untrained B.Sc. (Agriculture) teacher in the institution the petitioner also applied for the same. As the petitioner was selected for appointment in the grade of Rs. 120 -6 -160 -F.B. -9 -340 -10 -300 plus usual D.A. and was appointed on one year's probation with benefit of Provident Fund subject to confirmation. The appointment was subject to the approval of District Inspector of Schools. The appointment of petitioner on one years' probation was duly approved by District Inspector of Schools on 17 -10 -1965. The Grade of 120 -300 was prescribed in G.O. No. C -2908/ -XV -1723 -59, dated July, 27, 1959 for graduates who were completed from training qualification for the post of Assistant Teachers Teaching High School Classes. It is not known that whether prior to advertisement the institution had taken exemption for Agriculture teacher from the Board of High School and Intermediate Education, the competent body for the same U.P. Intermediate Education Act because of non -availability of trained agriculture teachers or for any other reason. From the grant of approval to the petitioner's appointment on probation no presumption as such can be drawn in the absence of any other material on the record. The petitioner on completion of one years' probation was confirmed on 27 -7 -1964. He passed M.A. (Eco.) in 1970 and passed B.Ed., Examination in 1972. From 1972 he was given the pay scale of trained teacher, and was placed in the seniority list at No. 4 while opposite party Rajendra Singh was placed at No. 6. Rajendra Singh who was B.Sc. L.T., was appointed teacher some six years after the appointment of petitioner, that is, on 5 -8 -1969 which was approved by the District Inspector of Schools on 29 -12 -1969. He was confirmed on 5 -8 -1970 that is the year in which petitioner passed M.A. Examination. Opposite party Rajendra Singh passed M.A. Examination in the year 1974 and 'ever since his appointment his salary was always lesser than that of the petitioner, on the retirement of one Sri Verma a vacancy of teacher in Economics occurred on 27 -10 -1973. The Committee of Management promoted the petitioner to the post of Lecturer vide resolution dated 10 -9 -1976 which was approved by the District Inspector of Schools on 16 -10 -1976. According to Regulation 6(1) of Chapter -II of the Regulations framed under U.P. Intermediate Education Act all teachers working in L.T. or the C.T. grade as the case may be having a minimum of 5 years of continuous substantive service to their credit are entitled to be considered without applying for the same provided they possess the minimum qualification for teaching the subject in which the teacher in Lecturer grade or in the L.T. grade is required. The minimum educational qualification for lecturer at the relevant point of time was also Post -graduate degree preferably trained. The Inspector of Schools approved the resolution regarding petitioner's promotion to the post of lecturer on 16th October, 1976 and rejected the representation of Rajendra Singh purporting to be under Regulation 3(1)(F) of the regulations in which he claimed seniority and contended the petitioner not to be qualified for the promotion in question. Against this order the opposite party Rajendra Singh filed a writ petition which was allowed on 30 -10 -1978 by a Division Bench of which one of us was a Member on the ground that it was not a speaking order. The Inspector of Schools was directed to decide afresh whether or not the approval should be given to the resolution of the Committee of Management proposing the appointment of the petitioner Dinesh Pratap Singh to the post of Lecturer in Economics in conformity with the requirements of the Act and the Regulation. The Inspector of Schools thereafter cancelled the promotion and vide order dated 4 -5 -1979 held Rajendra Singh to be senior as prior to doing B.Ed., the appointment of the petitioner was taken to be ex -cadre appointment and Rajendra Singh was held to be qualified for the post of Lecturer. It was thereafter that the instant writ petition was filed.
(2.) BEFORE considering the question of qualification it would be relevant to consider as to when vacancy occurred and what would be the appropriate date for considering the qualification of the candidates entitled to be promoted to the post of Lecturer. Regulation 6(1) of Chapter II of the Regulations reads as under: - - 6(1). Where any vacancy in the lecturers grade or in the L.T. Grade as determined under Regulation 6, is to be filled by promotion, all teachers working in the L.T. or the C.T. Grade, as the case may be having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the lecturer's grade or in the L.T. grade is required. Note. - -For purposes of this clause, service rendered by a teacher in the L.T. or the C.T. Grade in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to a lower post. (2) Selection for promotion to the next higher grade shall be make on the basis of service -standing, achievements in service, academic qualifications and integrity. (3) Subject to clause (2) where more than one teacher in the L.T. grade are eligible for promotion to the post of Lecturer in any subject preference shall be given to the teacher who is senior most amongst them in service in that grade. (a) The claim of any teacher who is eligible for promotions hall not be ignored merely because he has proceeded on long leave or is officiating or working temporarily on a post in the higher grade. (b) In the case of a teacher who is under suspension, the claim for promotion shall not be ignored if he is reinstated prior to the selection for promotion. (5) ........... (i) .......... (ii) .......... (iii) ........... (iv) ........... (v) ........... (vi) ........... (vii) .......... According to Regulation 6(1) the relevant date for considering minimum qualification is the date of occurrence of vacancy. A vacancy in an existing post which is not abolished comes into existence when permanent incumbent to it resigns, retires or dies. The creation of vacancy is not dependant on the appointment to the said post as and when it is made. In the instant case the vacancy thus occurred on 1 -10 -1973 the date on which permanent incumbent retired from service.
(3.) WHEN the vacancy occurred opposite party Rajendra Singh was not qualified to become Lecturer as he was not M.A. then but he post -graduated in the year 1974. He had also not completed 3 years of continuous service in L.T. grade having been appointed in the year 1973. As such he had no locus standi to lay a claim for the post. In the earlier writ petition which was allowed on a short ground this and other questions were not considered. He, not being qualified had no right now to question the appointment of the petitioner in preference to him. This renders the entire proceedings initiated in this behalf by him illegal as a promotion and appointment cannot be questioned by one who is not entitled to it.;