- (1.) D. S. Sinha, J. This second appeal under Section 100 of the Code of Civil Procedure, 1908, hereinafter called the Code, is directed against the decree and judgment of the I Additional District Judge, Allahabad dated 1st February 1982 passed in Civil Appeal No. 588 of 1981. Salik Ram v. Shambhoo Nath Agarwal and five others, whereby the decree and judgment dated 31st July, 1981 passed by the 8th Additional Munsif, Allahabad dismiss ing the suit of the plaintiff-appellant has been confirmed.
(2.) THE plaintiff-appellant in situated in the trial court suit for perma nent injunction for restraining the defendant-respondents from directly recruit ing a Lecturer in Hindi Department of Agarwal Intermediate College, herein after referred to as the Institution. Lateron, by amendment, relief for declar ing the appointment of Hari Shankar Misra, respondent No. 6 who was directly recruited, null and void, was also claimed in the suit. THE plaintiff-appellant claimed that in the vacancy on the post of Lecturer in Hindi created in October, 1977 appointment could be made only through promotion and not by direct recruitment inasmuch as forty percent of the posts of Lecturer were statutorily required to be filled up by promotion. He also claimed that he, being the only candidate having the requisite qualifications, was entitled to be promoted to the post of Lecturer in Hindi against the newly created post. The claim of the plaintiff-appellant was resisted by the defendant-respondents on the ground that the statutory provisions relied upon by the plaintiff-appellant had been repealed; that the relief claimed by the plaintiff-appellant had become infructuous consequent upon the appointment of the defendant- respondent No. 6; and that the plaintiff-appellant was not a fit person to be promoted as his integrity had been found to be doubtful. Besides these pleas, certain other pleas also had been taken on behalf of the defendant-respondents. The trial court cams to the conclusion that the plaintiff-appellant was not entitled for promotion to the post of Lecturer-in Hindi as his integrity was doubtful. It, therefore, dismissed the suit of the plaintiff-appellant.
(3.) AGGRIEVED by the decree and judgment of the trial court, the plaintiff-appellant preferred an appeal under Section 96 of the Code. The appellate court has affirmed the decree and judgment of the trial court by means of the impugned decree and judgment on the findings that the plaintiff-appellant was not a fit person to be promoted and that the post in question was not available to be filled up by promotion in view of the provisions contained in Regulation 5 (2) (a) of the Regulations framed under Section, 16-A, 16-B and 16-C of the U. P. Intermediate Education Act, 1921. Sri Radhey Shyam, learned counsel appearing for the plaintiff-appellant, contends that the view taken by the court below that the post was not Available for being filed up by promotion is illegal in as much as the quota of forty per cent has to be determined with reference to the post or posts fall ing vacant.;