- (1.) D. K. Seth, J The petitioners claims that they should have been promoted from C. T. Grade to L. T. Grade on account of their eligibility in the 40% quota for promotion as provided under Regulation 5 (2) (a), Chapter II of the Regulation framed under the U. P. Intermediate Education Act. Instead the respondents by the impugned order dated 17-9-85 con firmed and regularised the appointments of three teachers who were engaged in 1978 by way of regularisation. This order has been challenged in the writ petition. In the counter-affidavit it has been pointed out that on the date when the vacancy occurred the petitioners were not eligible for being promoted and therefore the promotion cannot be given.
(2.) I have heard learned Counsel for the petitioner and learned Standing Coun sel. By reason of the said provision 40% vacancy of the sanctioned posts in L. T. Grade is to be filled by promotion from amongst the teachers working in the C. T. Grade subject to availability and eligibility of such teachers for promotion. The said availability and eligibility is qualified by reason in Regulations 5 and 6 of Chapter-II framed under U. P. Inter mediate Education Act which provides as follows:- "5. (1) Every vacancy in the post of teacher in a recognised institution shall except as other wise provided in clause (2) be filled by direct recruitment. 2. (a) Forty 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 in stitution in the L. T. and the C. T. grades respec tively and promotions shall be made subject to availability and eligibility of such teachers for promotion. (b) If more than forty per cent 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 per sons already promoted shall not be reverted. (c) In computing forty per cent of the post under clause (a) fraction of less than one half shall be ignored while fraction of1 one-half or more shall be reckoned as one. Explanation.- (1) The expression "sanc tioned post" means any post not being a post created temporarily for a specified-period, which is created by an order of the authority com petent to create such post and includes a post on which appointment has been made with the ap proval of the Inspector. (2) The post held by a teacher who, while working in an institution in a lower grade (was appointed) to a higher grade in that institution through direct recruitment shall not be deemed to have been filled by promotion. (3) For purposes of this regulation, teachers duly appointed in any manner prior to the coming into force of the Intermediate Education (Amendment) Act, 1958 (U. P. Act No. XXXV of 1958) shall be deemed to have been appointed through direct recruitment. 6. (1) Where any vacancy in the lecturer's grade or in the L. T. grade as determined under Regulation 5, 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, ser vice 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 the basis of ser vice 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. (4) (a) The claim of any teacher who is eligible for promotion shall 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) In respect of any teacher selected for appointment by promotion in accordance with these regulations, the Manager of the institution shall within a week from the date of resolution passed by the Committee of Management in regard to such appointment forward (the proposal for the concurrence of the Inspector together with) a copy of such resolution and a statement showing the following particulars: (1) the total number of sanctioned posts in the grade in which promotion is to be made; (ii) the number of posts to be reserved for promotion; (iii) the number of posts already filled by promotion giving names of the incumbents; (iv) the total number of vacancies which have occurred; (v) the number of vacancies determined by the Committee of Management to be filled by- (a) promotion; (b) direct recruitment; (vi) the names of all eligible candidates for promotion, their qualifications and the length of their service from the date of their substantive appointment in the grade from which they are to be promoted; and (vii) names of persons selected for promo tion. (2) Within three weeks from the date of receipt of the proposal under clause (5) the Inspector shall communicate his decision there on to the Manager failing which the Inspector shall be deemed to have given his concurrence to the resolution passed by the Committee of Management. (7) Where the Committee of Manage ment feels aggrieved from the decision of the Inspector under clause (6), it may within two weeks from the date of communication of such decision to the Manager make a representation against it to the Regional Deputy Director of Education whose decision in the matter shall be final. " A plain reading of the said Regula tion 6 (1) indicates that a teacher having minimum qualification of five years con tinuous service in their credit on the date of occurrence of the vacancy shall be con sidered for promotion in terms of Regula tion 5 (2) (a) in the said 40% quota provided they possess prescribed mini mum qualification for teaching the subject in which the teacher in L. T. grade is re quired. Unless the above test is satisfied the petitioner can not claim to have ac quired any legal right in terms of Regula tion 5 (2) (a ). The relevant date on which five years continuous service is to be counted is the date the vacancy has oc curred. The learned Counsel for the petitioners' contended that the order having been passed in 1985 within which the petitioners had acquired their eligibility. The petitioners should have been considered and the vacancies should not have been filled up by direct recruit ment. Direct recruitment is permissible if 40% quota by reason of Clause (2) (b) and clause (1) of Regulation 5 of Chapter II is not available. By reason of clause (1) all vacancies arc to be filled up by direct recruitment except as provided in clause (2 ). By reason of Clause (2) filling up vacancy by promotion is subject to availability and eligibility which indicates that if there is no teacher available or if the teachers available do not possess the eligibility in terms of Clause (1) of Regula tion 5. The vacancy has to be- filled up by recruitment. Therefore there is no infir mity in filling up the post by direct recruit ment provided that there was no eligible teacher was available.
(3.) IN the present case it is alleged that the petitioners were appointed as assistant teacher in C. T. grade w. e. f 8-9-72 and 6-1-73 with substantive capacity and were con firmed after expiry of probationary period. Such statement has been made in para 3 of the writ petition. IN para 5 of the writ petition it has been pointed out that the vacancy was illegally advertised on 30-6-77 in Northern INdia Patrika. A copy whereof is Annexure-I to the writ petition. If the advertisement is issued on 30-6-77 the vacancy must have occurred either on 30-6-77 or prior thereto. Even if it is taken into consideration that the vacancy had occurred on 30-6-77 even then none of the petitioners have in their credit continuous five years substantive service. INasmuch as the petitioner No. 1 would be completed five years only on 8-9-77 whereas the petitioner No. 2 would be completed the same period on 6-1-78. Therefore, as dis closed the petitioners did not possess the primary qualifications namely five years continuous service on the date the vacancy was occurred. Therefore, they cannot claime promotion on the said vacancy in the 40% quota as claimed by them. For all the reasons the writ petition fails and is accordingly dismissed. How ever there will be no order as to costs. Petition dismissed. .;