D. K. Seth, J. - (1.) The petitioner was promoted to the post of Lecturer by an order dated 27.7.1979. This order was challenged by the Committee of Management by means of a writ petition which was ultimately withdrawn, whereupon respondent No. 4 Deo Nath Singh had moved a Writ Petition No. 6008 of 1981. That writ petition was dismissed by order dated 19.1.1993, against which Special Appeal No. 116 of 1993 was filed. In the Special Appeal, the order dated 27.7.1979 was quashed after holding that respondent No. 4 Deo Nath Singh being appellant in the said appeal was senior to the petitioner Dash Raj Yadav and, therefore, the vacancy in the post of Lecturer was directed to be filled up in accordance with law. All through the question remains as to among the petitioner Dash Raj Yadav and respondent No. 4 Deo Nath Singh who was entitled to be promoted to the said post of Lecturer. In order to establish the respective rights both of them have been claiming one was senior to the other. At no point of time in the earlier writ petition, it was contended that the post which was filled up by promotion was within the reserve quota for backward class and the petitioner had never made out a case that he was eligible and entitled to the appointment to the said post of lecturer by 'promotion on account of his being a member of the backward community as is apparent from the record available before this Court viz., respective judgments passed in the earlier proceedings.
(2.) Mr. D. S. P. Singh, learned counsel for the petitioner, however, contends that this was one of the main contention and defence taken by the petitioner in defending his case as respondent No. 4 in the earlier writ proceeding by means of filing counter-affidavit wherein such statement was incorporated along with material documents annexed therewith. But those materials are not available before this Court. The said contention is merely a statement from the Bar. There is no reflection of the said question either in the order dated 19.1.1993 passed by the learned single Judge nor there was any reflection in the order dated 30.10.1995 passed in the Appeal. In the learned single Judge's order, it was mentioned that 'basically the dispute in the case is as to whether the petitioner was senior to respondent No. 4' (Dash Raj Yadav). Though the contention of Dash Raj Yadav was noted in the appeal court, yet there was nothing that it was ever contended that Dash Raj Yadav, respondent No. 4 therein, was entitled to the said promotion by reason of his being a member of the backward community and that the said vacancy was earmarked for being filled up by promotion from among the backward community.
(3.) Be that as it may. Learned counsel for the petitioner Shri D. S. P. Slngh relies on Government Order dated 12.7.1978 contained in Annexure 4 to the writ petition and contends that when the vacancy had occurred on 30.1.1979, the same was subject to the said Government Order by which reservation was made applicable even in respect of appointment in school. Mr. G. K. Slngh contends that the Government Order shows that it relates to appointment. Nowhere it mentions that such reservation would be available even against vacancies to be filled up by promotion. The expression promotion has never been Included in the said order. Where as in the Government Order dated 26.1.1983. Annexure-CA-1 to the counter-affidavit as pointed out by Shrl G. K. Slngh, learned counsel for respondent No. 4, it was mentioned that reservation was not applicable in respect of vacancy to be filled up by promotion.;