S. H. A. Raza, J. - (1.) THE petitioner Smt. Indra Khare has prayed for the issue of a writ in the nature of certiorari quashing the order dated 25th August, 1987, passed by the Regional Inspectress of Girls Schools, VI Region as well as prayed for a writ of mandamus commanding the opposite parties to promote the petitioner to the post of Lecturer in Hindi, in accordance with the provision of Regulation 5 Chapter 2 of the Regulations framed under U. P. Intermediate Education Act.
(2.) BY means of the order dated 25th August, 1987 the Regional Inspectress of Girls Schools, VI Region Lucknow cancelled the order dated 5-1-1987 and directed the recruitment of one post of Hindi teacher, one post of English teacher and one post of Civics teacher on which posts Smt. Usha Atri, Smt. Kamlesh Bhatnagar and Smt. Sarojani Pande were working. The petitioner averred that the petitioner was appointed as a teacher in C. T. Grade in Navyug Kanya Inter College, Lucknow. On 1st July, 1986 on account of retirement of Mrs. Usha Yajnik Hindi Lecturer, the petitioner was asked to teach Hindi classes in Intermediate Classes. She taught Hindi in first year as well as in second year in the year 1986-87. She made a representation to the opposite party no. 1 that vacancy of Lecturer in Hindi be filled up by promotion quota of 40 percent. The petitioner who is M. A. in Hindi and M. A. in Sanskrit and possessed the teaching experience of more than five years was fully eligible for the said promotion. The opposite party no. 1 by order dated 5-1-1987 decided that the vacancies including the vacancy of Lecturer in Hindi were to be filled up by 40% quota of promotion. In compliance of the said order of the Regional Inspectress of Girls Schools, passed on 5-1-1987 the petitioner made a representation to the opposite party no 2 for promotion on the post of Lecturer in Hindi. The said representation was not decided by the Committee of Management, opposite party no. 2, however, certain letters were sent to the Regional Inspectress of Girls Schools by the said Managing Committee but on the basis of the said letters, the Regional Inspectress of Girls Schools recalled its earlier order and decided that the 2 vacancies were to be filled up by direct recruitment and granted confirmation to the appointments made on the said posts on the basis of direct recruitment. The petitioner came to know about the impugned order on 14th November, 1987 when the opposite party no. 3 came to join the post of Lecturer. The grievance of the petitioner is that while appointing the opposite party no. 3 as Hindi Teacher, who is a reserve pool teacher, no opportunity of hearing was given to the petitioner who was adversely affected. It has further been averred that at the time of vacancies, there were 36 sanctioned posts and on the basis of 40 percent quota, there should have been 14 promotions. 24 posts have already been filled up by direct recruitment, thus 12 posts remained due for promotion under 40 percent promotion quota. 10 posts had already been filled up and thus, the remaining two posts were to be filled up by the promotion under 40 per cent quota. It was for this reason that the opposite party no. 1 on 5-1-1987 had ordered for filling up the two posts, including that of the petitioner by 40 per cent quota of promotion. The impugned order dated 25-8-1987 passed by the Regional Inspectress of Girls Schools has been challenged on the ground that the provisions of Regulation 5 of Chapter 2 of Regulations framed under the Intermediate Education Act, the petitioner was legally entitled for promotion to the post of Lecturer and the opposite parties in utter violation has refused the said right to the petitioner. The opposite party no. 1 had no jurisdiction to recall its order dated 5-1-1987 and to pass fresh orders after review on 25-8-1987 as there exists no provision of review of such an order under the Intermediate Education Act. No Reserve pool teacher can be appointed under sub-section 3 of Section 21-B amongst 40 per cent reserved for promotion and as such the appointment of opposite party no. 3 is manifestly illegal. On 8-12-1988 this Court passed the following order :- "No counter affidavit to this application has been filed. The grievance of the petitioner is that she was promoted in pursuance of order dated 5-1-1987 and the said promotion has been cancelled vide order dated 25-8-1987 without giving any opportunity of hearing to her. In case the post is still available, operation of the impugned order dated 25-8-1987 shall be deemed to have stayed so far as the petitioner is concerned and the petitioner shall be allowed to work on the promoted post and shall be paid salary for the same."
(3.) SMT. Ranjana Sharma, opposite party no. 3 has filed her own counter affidavit in which she averred that she had passed her M. A. examination with Hindi and B. A. with subjects Hindi, Sanskrit and Sociology from Lucknow University. It was denied that the vacancy caused due to the retirement of SMT. Usha Yajnik was to be filled by promotion, as the promotion quota had already exhausted and there existed no question of filling the post by way of promotion. It was also denied that the Management had represented for filling of the said post by promotion. The Regional Inspectress of Girls Schools had accepted that the post fell vacant due to the retirement of SMT. Usha Yajnik was to be filled up by direct recruitment. It was vehemently denied the petitioner was entitled to the salary as she was never appointed to the Post of Lecturer in Hindi in the College and her statement to that effect is false. In reply to the counter affidavit, the petitioner further averred that mere issuance of an appointment order for the post which was to be filled In under 40 per cent quota will not make the said post fit for direct recruitment. The post in question is still available as per stand of opposite party no. 3 herself under 40 per cent promotion quota. Even before the appointment order of the opposite party no. 3 the petitioner was teaching Intermediate classes in Hindi for one academic year before her promotion.;