- (1.) A. N. Gupta, J. Azimuddin Ashraf Is-lamia Inter College, Barabanki is a Govern ment aided College, The Committee of Management and the Manager of which are Respondents No. 2 and 3 respectively to this petition. District Inspector of Schools is Respondent No. 1.
(2.) SYED Majid Ashraf Nadvi, the petitioner was appointed on 23. 8. 73 as a teacher in the C. T. grade in'the college and since then he has been working. At the time of his appointment his academic qualifica tions were that he had passed out M. A. in Urdu from Nagpur University, B. Ed, from Marathwara University and Higher Diploma in Oriental Learning (Maulvi Fazil) from Nagpur University. After join ing he passed out M. A. in Persian from Nag pur University in the year 1974 and obtained Ph. D. in Urdu in the year 1980 from Luck-now University. On 18. 2. 89 a post of Lec turer in Urdu fell vacant in the College because Sri Jalil Yar Khan Warsi was promoted to the post of Principal of the College. At that time i. e. on 18. 2. 89 there were 21 sanctioned posts in the Lecturers grade in the College against which 11 direct ly recruited candidates were working. At the time when this petition was filed in February, 19%, 5 posts in the Lecturers grade including that of a Lecturer in Urdu were vacant. Regulations have been framed regarding appointment of teachers under U. P. Intermediate Education Act, 1921. Regulation 5 (1) provides that every vacancy in the post of teacher in a recognised institu tion shall except as provided in clause (2) be filled by direct recruitment. Regulation 5 (2) provides that 50 per cent of the total num ber of sanctioned posts in Lecturers grade or in the L. T. grade shall be filled in by promotion from amongst the teachers working in the institution in the L. T. and C. T. grades respectively and promotion shall be made subject to availability and eligibility of such teachers for promotion. Regulations 5 (1) and 5 (2) read as under:- "5 (1) Every vacancy in the post of teacher in recognised institution shall except as otherwise provided in clause (2) be filled by direct recruit ment. 5 (2) (a) Fifty per cent of the total number of the sanctioned posts in lecturer's grade or in the L. T grade (shall only be filled by promotion) from amongst the teachers working in the institution in the L. T. and C. T. grades respectively and promo tions shall be made subject to the availability and eligibility of such teachers for promotion. (b) If more than fifty percent of the total number of the sanctioned posts in the Lecturer's grade or as the case may be in the L. T. grade have already been filled by promotion, the persons al ready promoted shall not be reverted. (c) In computing fifty per cent of the posts under clause (a) fraction of less than one-half be ignored while fraction of one -. half or more shall be reckoned as one. " A combined reading of Regulations 5 (1) and (2) shows that every vacancy has to be filled by direct recruitment in the lec turers grade but 50 per cent of the posts shall be filled by promotion from the L. T. grade teachers provided such teachers are available and eligible for promotion. Regulation 6 (1) provides that whenever any vacancy in the lecturers' grade falls vacant, and is to be filled in by promotion, all the teachers working in the L. T. grade who have a minimum 5 years continuous substantive service to their credit on the date of occur rence of the vacancy, shall be considered for promotion by the Committee of Manage ment without their having to apply for the same provided they possess jthe prescribed minimum qualification for teaching the subject. ' Regulation 6 reads as follows:- "6 (1) Where any vacancy in the lecturer's grade in the L. T. grade as determined under regulation 5, is to be filled by promotion all teachers working in the L. T or 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 mini mum qualifications for teaching the subject in which the teacher in the Lecturers grade or in the L. T grade is required. Note.-For purpose 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 made on 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 the senior-most amongst them in service in that grade. " Since against 21 sanctioned posts in the Lecturers grade, 11 directly recruited candidates were already working, the remaining posts including two posts of lec turer in Urdu, were to be filled by promo tion in accordance with the provisions of Regulations 5 and 6 quoted above.
(3.) THE grievance of the petitioner is that although he was fully eligible for promotion on the post of Lecturer in Urdu but his case was not being considered by the College authorities and theiefore, on 6. 10. 90 he made a representation to them which was followed by a reminder dated 27. 2. 91. THE Committee of management in stead of disposing of representation of the petitioner, issued an advertisement on 25. 3. 93 in Times of India' newspaper calling for applications for appointment on two posts of English Lecturers and one post of Urdu Lecturer and as such, management of the College was proceeding to making direct recruitment on the post of Lecturer in Urdu. When the petitioner learnt about it, he made a representation dated 8. 6. 93 to the D. I. O. S. requesting him to direct the management to fill vacancy on the post of lecturer in Urdu by promotion only. THE same day i. e. on 8. 6. 93 the D. I. O. S. wrote to the management of the College asking it to stop process of direct recruitment and to fill the post of lecturer in Urdu by promotion. In pursuance of the said directions of D. I. O. S. the process of direct recruitment in pursuance of said advertisement was stopped by the management but no promo tions were made against the vacancies in Lecturer's grade. Subsequently, the petitioner made several representations dated 13. 7. 93, 27. 8. 93, 22. 6. 94 and 26. 6. 95. THE representations of the petitioner were ultimately disposed of by the management vide its letter dated 13. 2. 96 rejecting the same on the ground that on the date i. e. on 18. 2. 89 when vacancy of the post of lecturer in Urdu fall vacant, the petitioner was not eligible for the promotion as he had not put in five year's service in the L. T. Grade. On 8. 1. 96 the management again issued an advertisement in 'pioneer' in viting applications for direct recruitment on several posts including on the post of lec turer in Urdu which gave rise to this peti tion. The petitioner has prayed for a writ of certiorari for quashing the advertisement dated 8. 1. 96 on the ground that the post is to be filled in by promotion and not by direct recruitment. He has also prayed for a writ of mandamus directing the opposite parties not to make direct appointment on the post of lecturer in Urdu and to consider the case of petitioner for promotion. It has also been prayed that the petitioner be considered for promotion to the post of Lecturer in Urdu.;