R.M. Sahai, J. - (1.) DUE to lack of co -ordination between Committee of Management, educational authorities and Education Service Commission a peculiar situation has arisen inasmuch as if the claim of one is accepted other is injured for no fault of his. How to work out equities in such situation is the issue. But before doing so the circumstances in brief, giving rise to it may be narrated. Post of lecturer in Hindi and Sanskrit fell vacant in June, 1982 and 1981 respectively in the institution. It was proposed to be filled by promotion of petitioners who were already working in L.T. grade. But the Inspector of Schools approved their promotion on ad hoc basis and appears to have notified the vacancies to Commission under Act V of 1982 which issued advertisement inviting applications. When this fact came to knowledge of petitioners they approached Committee of Management claiming that since under regulations 40% of posts of lecturer could be filled by promotion only and there were only 3 lecturers out of sanctioned strength of 19 the selection through Commission, that is, by direct recruitment be got cancelled. The management appears to have written to Inspector of Schools who realising this mistake made a request to the Commission to stay selection. The petitioners also approached. But the Commission asked them to contact the Inspector of Schools. Despite all this correspondence in 1983 much before selection the Commission went ahead and selected candidates for the post of lecturers in Sanskrit and Hindi in November, 1984 and recommended them for appointment in the college. In 1985 lot of correspondence ensued but when nothing came out of it the petitioners came to this court and succeed in obtaining interim order. Latter on it was vacated. And the lecturer selected for the post of Sanskrit joined. Although no counter -affidavit has been filed by Inspector of Schools but from his letters sent to Commission it is established beyond doubt that out of sanctioned strength of 19 lecturers only three were working against promotional quota. Under Regulations framed under U.P. Intermediate Education Act which continues to apply even after U.P. Act 5 of 1982 40% of the posts in a particular grade had to be tilled by promotion, unless qualified persons were not available in which case it could be filled by direct recruitment. In absence of any material to show that more than 40% quota was filled by direct selection because suitable candidates were not available it has to be assumed that these posts had to be filled by promotion. To this extent the Inspector of Schools committed error in notifying vacancy. The Commission aggravated it by not paying any heed to letter of Inspector of Schools and proceeding with selection. Should the selection and appointment of opposite party, therefore, be quashed? Has he violated any law or is he guilty of any misrepresentation? The answer has to be in negative. He cannot be blamed for mistakes committed by public authorities. If the Inspector of Schools would have notified vacancy after consulting Committee of Management the situation would not have arisen. And if Commission would have paid heed to letter of Inspector of Schools sent in 1983 the advertisement could have been withdrawn and in any case selection could not have been made. But only paper ball was rolling from one end to another end ultimately the selection was made creating a right in favour of opposite party. Thus the unfortunate situation was created as if the claim of petitioners is correct as it appears to be then selection should not have been made whereas the opposite party having been selected in pursuance of an advertisement which was not withdrawn has a vested right to be appointed. Mere advertisement may not but selection does create a right.
(2.) FOR such lapse of public authorities the common man cannot be made to suffer. Therefore, the equities can be adjusted by accommodating both one by virtue of selection and the other by promotion even if results in duplication of two lecturers for the same subject. Consequently the petition is decided in terms of directions given under: (1) The opposite party who has been selected as lecturer in Sanskrit by Commission shall continue and his appointment shall not be disturbed. (2) In case petitioner had completed five years substantive service in lecturer grade on the date the vacancy arose the Committee of Management and Inspector of Schools shall take steps to fill it by promotion of petitioners in accordance with rules and regulations. And the Commission shall not withhold approval only because there was one post of lecturer in Sanskrit. (3) Since no appointment for post of lecturer in Hindi has been made no direction is needed. It shall be filled in accordance with rules. Parties shall bear their own costs.;