- (1.) BHARATI Sapru, J. Heard learned Counsel for the petitioner, learned Counsel for the respondent No. 3 and learned Standing Counsel.
(2.) THIS writ petition has been filed by the petitioner seeking a writ of certiorari for quashing the orders dated 4-12- 2001, 18-12-2001 and 16-1-2002 (Annexures 8, 9 and 11 to the writ petition) passed by respondent No. 1 by which he has recommended the case of the respondent No. 3 for promotion as a teacher in the Lecturer Grade in the institution in question. Admittedly the facts are that there are six posts sanctioned on the posts of lecturer in the institution in question under the provisions of Rule-14 of the U. P. Secondary Education Services Board Rules, 1998, 50% of the posts are to be filled by direct recruitment and the rest 50% by promotion in the institution in question, therefore, only three posts are to be filled by way of promotion. The petitioner's contention is that he is the senior most teacher in the L. T. Grade and, therefore, when the vacancy arose on 1st of July 2001. He was the only teacher who fulfilled the requirement of Rule-14 and was the only teacher who fulfilled the eligibility criteria and was entitled to be promoted under Rule- 14. The management of the College sent the papers of the petitioner for consideration of promotion to the District Inspector of Schools but the District Inspector of Schools passed no orders on these papers instead the respondent No. 3 set up a case for being SC/st candidate he was entitled to promotion on the basis of the reservation roster.
(3.) LEARNED Counsel for the petitioner has made two arguments the first argument is on the basis of a judgment of this Court in the case of Yogendra Pal Singh v. The District Inspector of Schools, reported in 2001 (2) LBESR 635 (All) : 2000 (3) UPLBEC 2155, wherein this Court has held that Rule-14 (1) of the rules aforesaid contemplates 5 years continuous teaching service on a regular and substantive basis and, therefore, the petitioner argues that the respondent No. 3 was not entitled to be considered for promotion as on the date of vacancy i. e. on 1-7-2001. The respondent No. 3 had not completed 5 years regular service on a substantive post as he had been regularised in the year 1998. The second argument of the learned Counsel for the petitioner has been made on the basis of another decision of this Court in the case of Asha Jaiswal v. Joint Director of Education, reported in 2004 (2) UPLBEC 1837, wherein this Court has held that upon a consideration of the provisions of Section 10 of the U. P. Secondary Education Services Selection Boards Act, 1982 and the Rules of 1998 of the Rule 14 the reservation policy cannot be applied because the act aforesaid does not contain any provision for reservation in promotion cases Articles 16 (4) and 16 (4)A the Court held there are enabling provisions which empowers Government to enact legislation for providing reservation and while Section 10, of the Act aforesaid provided for reservation in the case of direct recruitment makes no specific provision for reservation in cases of promotion, therefore, the petitioner contains (sic) the reservation roster will have no application in the cases of promotion under Rule 14 of the rules.;