- (1.) HEARD Sri Arvind Srivastava, learned counsel for the appellant, V. K. Jaiswal, Advocate and learned Standing Counsel for the respondents.
(2.) THIS special appeal is directed against the judgment and order of the Hon'ble Single Judge dated 12th November, 2008, whereby the writ petition filed by the appellant has been dismissed. Petitioner-appellant was appointed as Assistant Teacher in L. T. grade on 19th August, 2002 after selection by the U. P. Secondary Education Services Selection Board. A post of Lecturer (Mathematics) had fallen vacant even prior to his appointment to be specific on 30th June, 2002 in the institution. The appellant approached the Writ Court for a writ of mandamus commanding the respondents to promote the petitioner on the post of Lecturer (Mathematics), which is lying vacant in the institution concerned since 30th June, 2002 as it was under 50% promotional quota. The writ petition has been dismissed by the Hon'ble Single Judge observing that appellant-petitioner was not qualified for promotion, as he did not fulfil the eligibility criteria as required for promotion under the statutory rules.
(3.) LEARNED counsel for the petitioner-appellant challenging the judgment and order of the Hon'ble Single Judge dated 12th November, 2008 contended that although the post of Lecturer (Mathematics) had fallen vacant on 30th June, 2002 but no steps were taken for filling up the post. By virtue of proviso to Rule-10 of U. P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the '1998, Rules'), it is the discretion of the Committee of Management to not fill up the post in any particular year because of the use of the word 'may' in proviso to Rule-10 of the Rules, 1998. He submits that under Rule-14 of the Rules, 1998 the concept of year of recruitment is not the same as defined in the U. P. Secondary Education Services Selection Board Act, 1982. He further submits that the word "year of recruitment" shall take colour from the context of the Rule and in the facts of the present case the year of recruitment will be the year when the management decides to fill up the vacancy. Learned counsel for the appellant in support of his plea has placed reliance upon the judgments of the Hon'ble Supreme Court in the cases of Ram Sarup v. State of Haryana and others, (1979) 1 SCC 168; Han's/7 Chandra Ram v. Mukh Ram Dubey and others, 1994supp. (2) SCC 490; Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1; and Malik Mazhar Sultan and another v. U. P. Public Service Commission and others, (2006) 9 SCC 507.;