- (1.) PRAKASH Krishna, J. The petitioner, a teacher in L. T. grade promoted on 13th of March, 1979, possessing the requisite qualification for further promotion as lecturer in History having passed M. A. with subject History in 1971, working in Lala Karam Chand Thapar Intermediate College, a recognized institution governed by Intermediate Education Act and the Regulations framed there under, has filed the present writ petition challenging the promotion of the respondent No. 3, Shri Jagdish Narain Srivastava on the post of Lecturer, has sought a writ, order or direction in the nature of certiorari for quashing the promotion order of Respondent No. 3 dated 5th of June, 1995 (Annexure-6 to the writ petition) and a writ of mandamus directing the respondents to promote the petitioner as Lecturer in the said College. The facts of the case in brief are as follows:
(2.) VACANCY on the post of Principal arose on account of retirement of one Sri Hari Nath on 30th of June, 1992, Shri Surendra Bahadur Tiwari the senior most Lecturer in History was promoted on ad hoc basis on the said vacancy with the result a resultant vacancy arose on the post of Lecturer in History which was being earlier occupied by Shri Surendra Bahadur Tiwari, before his promotion as ad hoc Principal. It is not in dispute that the respondent No. 3 is senior to the petitioner in L. T. grade. It is also not in dispute that the said respondent No. 3 did not possess the requisite minimum qualification as prescribed under the Statute on 1st of July 1992 when the vacancy on the post of Lecturer arose. It is also not in dispute that the petitioner though junior to the respondent No. 3, did possess the requisite qualification being M. A. in History subject. Consequently, the petitioner claimed through the application dated 1st of September, 1992 addressed to the Committee of Management for his promotion and under the expectation of promotion the petitioner started teaching Intermediate classes. However, on 30th of June, 1993 the Committee of Management resolved to send a proposal for promotion of the respondent No. 3 as Lecturer in History and sent the necessary papers for financial sanction to the District Inspector of Schools, Deoria. To this proposal the petitioner filed objections by way of representation dated 13th of October, 1993. On failure of District Inspector of Schools to take a decision in this regard, a writ petition No. 16590 of 1994 was preferred by the respondent No. 3 which was disposed of by the judgment dated 18th of August, 1994 with the direction to the District Inspector of Schools to examine the case of the respondent No. 3 and pass the consequential order, vide Annexure-4 to the writ petition. It was provided in the said judgment that the District Inspector of Schools will record the finding whether there was any ban imposed by the Government on 30th of June, 1993 for making any ad hoc appointment or promotion to the post of Lecturer and shall also examine whether the petitioner therein (Jagdish Narain Srivastava) was entitled for promotion in accordance with law. Another writ petition No. 41469 of 1994 was filed by the present petitioner for consideration of his representation filed by way of objection. The said writ petition was disposed of on 3rd of January, 1995 with the direction to decide the representation of the petitioner within a period of one month vide Annexure-5 to the writ petition. The District Inspector of Schools vide order dated 5th of June, 1995 (Annexure-6 to the writ petition) has decided the controversy between the parties in pursuance of the directions issued by this Court in the aforestated two writ petitions and held that the proposal sent by the Committee of Management proposing to give ad hoc promotion to the respondent No. 3 Jagdish Narain Srivastava in History subject is in accordance with law and the objections raised by the petitioner are meritless. Accordingly, ad hoc promotion has been granted to the respondent No. 3 w. e. f. 1st of July, 1993. Feeling aggrieved against the aforesaid order the present writ petition has been filed. The learned Counsel for the petitioner submitted that not withstanding the fact that the respondent No. 3 is senior in L. T. grade to the petitioner, he did not possess the requisite minimum educational qualification on the date when the vacancy arose i. e. 1st of July, 1992, he could not be promoted on the said post even by way of ad hoc promotion. Elaborating the argument it was submitted that acquiring the educational qualification subsequently after the relevant date of vacancy is of little consequence. The petitioner possessed the minimum educational qualification of Lecturer on the date of vacancy being M. A. in History subject was entitled for promotion to the post of Lecturer. In contra, the learned standing Counsel submitted that the contesting respondent No. 3 acquired the minimum educational qualification in the month of June, as he cleared the M. A. in History, did possess the minimum educational qualification on the date of consideration to fill up the post in question.
(3.) NONE appeared on behalf of the respondent No. 3. Before proceeding further it may be noted here that the learned Counsel for the petitioner raised an objection that the vacancy in question is required to be filled up in accordance with the provisions of U. P. Secondary Education and Selection Board Act, 1982. The said argument was not pressed any further when it was pointed out to him that the vacancy means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in a substantive capacity as per Rule 2 (hh) of the U. P. Secondary Education Service Commission Rules, 1983.;