Ram Sewak vs State of U.P. and others

V. K. Shukla, J.—In the District of Mirzapur, there is an institution known as Jai Hind Vidya Mandir Inter College, Ahraura, District Mirzapur. Said institution is duly recognized institution under the provision of U.P. Intermediate Education Act, 1921 and regulation framed there under. Institution in question is in grantinaid list of the State Government and provision of U.P. High School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971 is applicable to the said institution. Selection and appointment on the post of Principal, Headmaster, Lecturer and L.T. grade Teacher is to be made as per provision contained in U.P. Secondary Education Services Selection Board Act, 1982 and U.P. Secondary Education Services Selection Board Rules, 1998. In the institution concerned one post of Lecturer in Economics fell vacant on 30.6.1999 on account of attaining the age of superannuation by one Bechan Singh. Petitioner submits that at that point of time i.e. on the first day of the year of recruitment which is 1.7.1999, in the next lower grade i.e. L.T. grade, no one was there entitled and eligible to be promoted as such post in question was to be filled up, by way of direct recruitment. Subsequent to it petitioner submits that post of Lecturer in Sanskrit has fallen vacant on 2.2:2004, when one Laxmi Shankar Shukla, Lecturer in Sanskrit died. Contention of petitioner is that he is fully qualified and eligible to be promoted as Lecturer in Sanskrit, which is a post clearly falling within 50% quota, but the Management of the institution quite illegally, has passed resolution in favour of one Rajesh Kumar Nawal to be promoted as Lecturer in Economics, whereas the fact of the matter is that on 1.7.1999, he did not possess Masters degree to his credit and further had not even completed five years continuous regular service and as such by no means and by no stretch of imagination, any resolution for promotion could have been passed in favour of said Rajesh Kumar Nawal. At this jumcture petitioner has approached this Court for issuing a writ in the nature of mandamus directing the respondents to promote the petitioner as Lecturer in Sanskrit.

To this writ petition, counter affidavit has been filed in behalf of the Management and therein it has been accepted that post of Economics lecturer had fallen vacant on 30.6.1999 and that post of Sanskrit Lecturer has fallen on 3.2.2004, due to death of Laxmi Shankar Shukla. In respect to Rajesh Kumar Nawal, as it has been mentioned that he was appointed as Assistant Teacher on 6.9.1997. It has also been contended that he is senior most Teacher in Scheduled Caste category and as such he has been rightly accorded promotion. It has also been contended that Committee of Management of the Institution in its turn has resolved to fill up the post of Lecturer in Sanskrit by way of direct recruitment, as 50% quota already stood exhausted. In this regard, it has been contended that claim of petitioner is devoid of merit.

To the counter affidavit, rejoinder affidavit has been filed and it has vehemently asserted therein that post of Lecturer in Economics, by no stretch of imagination, could have been filled up by way of promotion, as on the first of the year of recruitment i.e., 1.7.1999, Rajesh Kumar Nawal did not have to his credit Masters degree as he acquired Master degree on 2.8.2003 and thus he was totally ineligible in terms of Rule 14(1) of 1998 Rules. Neither he was eligible on educational qualification front nor he fulfilled requisite criteria of five years continuous regular service, as he had been appointed in the institution on 6.6.1997, as such resolution is clearly dehors the rules.

After pleading mentioned above, has been exchanged, present writ petition has been taken up for final disposal with the consent of the parties.

Sri R. M. Vishwakarma, learned Counsel for the petitioner contended with vehemence that post of Lecturer in Economics in all eventuality had to be filled up by way of direct recruitment, as in the institution concerned on 1.7.1999 which is the first day of the year of recruitment, no one eligible was available and further as far as Rajesh Kumar Nawal is concerned, his date of appointment as L.T. grade Teacher is 6.7.1999, he acquired Master Degree on 2.8.2003 and thus he was totally ineligible in terms of Rule 14(1) of 1998 Rules and could not have been promoted as such post of Lecturer in Sanskrit has to be filled up by way of promotion as same falls within 50% quota and further petitioner fulfills each and every prerequisite terms and condition for being accorded promotion and in all eventuality, is liable to be accorded promotion, even without having applied for the same and as such writ petition is liable to be allowed.

Sri S. M. Yadav, who represented the Management submitted that first day of the year of recruitment, has to be dealt with in the year when the Committee of Management proposed and proceeded to pass resolution. In the present case as Committee of Management has proceeded to pass resolution in the year 2004 as such Rajesh Kumar Nawal should be treated as eligible and claim of petitioner is liable to be defeated.

In order to appreciate the contentions raised on behalf of parties, Sections 2(1) and 10 of U.P. Act No. 5 of 1982 and Rules 4, 5, 10, 11, 12, 13, 14(1) and 16(1) of the 1998 Rules, being relevant, are quoted below:

"Section 2(1). (1) ''Year of recruitment'' means a period of twelve months a period of twelve months commencing from July 1st of a calendar year.

Section 10. Procedure of selection by direct recruitment.

(1) For the purpose of making appointment of a teacher by direct recruitment, the Management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.

(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed:

Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under subsection (1)

Procedure of Selection by promotion.

(1) For each region, there shall be a Selection Committee, for making selection of candidates for promotion to the post of a teacher, comprising:

(i) Regional Joint Director of Education Chairman,

(ii) Senior most Principal of Government Inter College in the region Member

(iii) Concerned District Inspector of Schools. MemberSecretary

(2) The procedure of selection of candidates for promotion to the post of a teacher shall be such as may be prescribed.

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Rule 4. Age. A candidate for direct recruitment to a post of a teacher must have attained the age of twentyone years on the first day of July of the calendar year in which the vacancies are advertised by the Board or by the Joint Director, as the case may be.

Rule 5. Academic Qualification. A candidate for appointment to a post of Teacher must possess qualification specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act, 1921.

Rule 6. Character. The character of a candidate for direct recruitment to a post of Teacher must be such as to render him suitable in all respects for employment in an educational institution. The Board shall satisfy itself on this point.

Note. Persons dismissed by the Union Government or a State Government or a Local Authority or by a Corporation or Body owned or controlled by the Union Government or a State Government shall be ineligible for appointment. Persons convicted on an offence involving moral turpitude shall also be ineligible.

Source of recruitment. Recruitment to various categories of Teachers:

(a) Principal of an Intermediate College. By direct recruitment or Headmaster of a High School;

(b) Teachers of lecturers grade. (i) 50 percent by direct recruitment;

(ii) 50 percent by promotion from amongst substantively appointed Teachers of the trained graduates grade;

(c) Teachers of trained graduates grade. (i) 50 percent by Promotion from amongst the substantive appointed Teachers of Certificate of Teaching grade:

Provided that it in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment:

Provided further that if in calculating respective percentages of posts under this rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.

Determination and notification of vacancies (1) For the purposes of direct recruitment to the post of Teacher, the Management shall determine the number of vacancies in accordance with subsection (I) of Section 10 and notify the vacancies through the Inspector, to the Board in the manner hereinafter provided.

(2) (a) The statement of vacancies for each category of posts to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the pro forma given in Appendix "A" by of Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subjectwise in respect of the vacancies of Lecturer grade and eroupwise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, alongwith the copies of statement received from the Management, be sent by the Inspector to the Board by July 31 with a copy thereof to the Joint Director:

Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:

Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20, 1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this subrule to the Board by July 25, 1998.

Explanation. For the purposes of this subrule the word ''groupwise'' in respect to the trained graduates grade means in accordance with the following groups, namely:

(a) Language this group consist of the subjects of Hindi, Sanskrit, Urdu, Persian and Arabic

(b) Science This group consists of the subjects of Science and Mathematics.

(c) Art and Craft

(d) Music

(e) Agriculture

(f) Home Science

(g) Physical Education

(h) General this group consists of the subjects not covered in any of the foregoing groups.

(b) With regard to the post of Principal or Headmaster, the Management shall also forward the names of two seniormost Teachers, alongwith copies of their service records (including character rolls) and such other records or particulars as the Board may require, from time to time.

Explanation. For the purpose of this suprule "senior most Teacher" means the seniormost Teacher in the post of the highest grade in the institution, irrespective of total service put in the institution.

(3) If, after the vacancies have been notified under subrule (2), any vacancy in the post of Teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said subrule and the Inspector shall within ten days of its receipt by him send if to the Board.

(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in subrule (2) or fails to notify them in accordance with the said subrule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with subsection (1) of Section 10 and notify them to the board in the manner and by the date referred on in the said subrule. The vacancies notified to the Board under this subrule shall be deemed to be notified by the Management of such institution.

Procedure for direct recruitment. (1) The Board shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens in at lest two daily newspapers, having wide circulation in the State, and call for the applications for being considered for reservation in the proforma published in the advertisement. For the post of Principal of an Intermediate College or the Head Master of a High School, the name and place of the institution shall be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wishes to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application.

(2) The Board shall scrutinize the applications and in respect of the post of Teacher in Lecturers and trained graduates grade, shall conduct written examination. The written examination shall consist of one paper of general aptitude test of two hours duration based on the subject. The centres for conducting written examination shall be fixed in district head quarters only and the invigilators shall be paid honorarium at such rate as, the Board may like to fix.

(3) The Board shall evaluate the answer sheets through examiner to be appointed by the Board or through Computer and the examiner shall be paid honorarium at the rate to be fixed by the Board.

(4) The Board shall prepare lists for each category of posts on the basis of quality points specified in Appendix ''B'' or Appendix ''C'' as the case may be, marks in written examination and marks for experience as follows:

(i) 30 per cent marks on the basis of quality points;

(ii) 30 per cent marks on the basis of written examination; and

(iii) 20 percent marks for experience more than the required experience in such manner that 4 marks shall be given for each year of such experience with maximum of 16 marks.

Notes. (1) The teaching experience for this purpose shall be counted only for the recognised High School/Intermediate College (s) or Junior High School and such certificate shall actually mention the date of appointment, date of joining and the scale of pay and duly signed by the Principal/Head Master and counter signed by the District Inspector of School or Zila Basic Shiksha Adhikari, as the case may be, with full name of the countersigning authority;

(2) Any wrong information submitted in this regard shall make the applications of such candidates liable to be rejected and for this the candidate himself shall be solely responsible.

(5) The Bard shall, in respect to the selection for the post of Head Master and Principal, allot the marks in the following manner:

(i) 60 percent marks on the basis of quality point specified in Appendix ''D'';

(ii) 20 per cent marks for having experience more than the required experience. 1 mark for each research paper published with a maximum of 4 marks and 2 marks for each year of such experience with a maximum of 16 marks; and

(iii) 10 per cent marks for having doctorate degree.

Note. For the purpose of calculating experience, the service rendered as Head Master of Junior High School or as Assistant Teacher of a High School/Intermediate College shall be counted in the case of selection of Head Master and for selection of Principal, the service rendered as Head Master of a High School or as a Lecturer shall only be counted. The provision of subrule (4) of Rule 12 regarding the certificate of experience shall mutatis mutandis apply.

(6) The Board, having regard to the need fort securing the representation of the candidates belonging to the Scheduled Castes/Scheduled Tribes and Other Backward Classes of citizen in respect of the post of Teacher in Lecturers grade and trained graduates grade, call for interview such candidates who have secured the maximum marks under subrule (4) above/and for the post of Principal/Head Master, call for interview such candidates who have secured maximum marks under subclause (5) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies:

Provided that in respect of the post of Principal or Head Master of an institution the Board shall also in addition call, for interview two senior most Teachers of the institution whose names are forwarded by the Management through Inspector under clause (b) of subrule (2) of Rule 11.

(7) The Board shall hold interview of the candidates and 10 percent marks shall be allotted for interview. The marks obtained in the written test and the quality point by the eligible candidates shall not be disclosed to the members of the Interview Board.

Provided further that in the interview, ten percent marks shall be divided in the following manner:

(i) 4 percent marks on the basis of subject/general knowledge;

(ii) 3 percent marks on the basis of personality; and

(iii) 3 percent marks on the basis of ability and experience.

(8) The Board then, for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under subclause (4) or subclause (5) above, as the case may be with the marks obtained in the interview. The panel for the post of Principal or Head Master shall be prepared institutionwise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whereas for posts in the Lecturers and trained graduates grade, it shall be prepared subjectwise and groupwise respectively. If two or more candidates obtain equal marks, the name of candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal, then the name of candidate who is older in age shall be placed higher. In the panel for the post of Principal or Head Master, the number of names shall be three times of the number of vacancy and for the post of Teachers in the Lecturers and trained graduates grade, it shall be larger (but nor larger than twenty five percent) then the number of vacancies.

Explanation. For the purpose of this subrule the word ''groupwise'' means in accordance with the groups specified in the Explanation to subrule (2) of Rule 11.

(9) At the time of interview of candidates, for the post of Teachers in Lecturers and trained graduates grade the Board shall, after showing the list of the institutions which have notified the vacancy to it, require the candidate to give, if he so desires, the choice of not more than five such institutions in order of preference, where, if selected, he may wish to be appointed.

(10) The Board shall after preparing the panel in accordance with subrule (8), allocate the institutions of the selected candidates in respect of the posts of Teachers in Lecturers and trained graduates grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with subrule (9). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated any institution to him as it may deem fit.

(11) The Board shall forward the panel prepared under subrule (8) alongwith the name of the institutions allocated to selected candidates in accordance with subrule (10) to the Inspector with a copy thereof to the Joint Director and also notify them on its noticeboard.

Intimation of names of selected candidates. (1) The Inspector shall, within ten days of the receipt of the panel and the allocation of institution under Rule 12:

(i) Notify it on the noticeboard of his office.

(ii) Intimate the name of selected candidate to the Management of the, institution, which has notified the vacancy, with the Director, that, on authorization under resolution of the Management, an order of appointment, in the pro forma given in Appendix ''E'' be issued to the candidate by registered post within fifteen days of the receipt of intimation requiring him to joint duty within fifteen days of the receipt of the order or within such extended time, as may be allowed to him by the Management, and also intimating him that on his failure to join within the specified time his appointment will be liable to be cancelled.

(iii) Send an intimation to the candidate, referred to in clause (ii) with the direction to report to the Manager within fifteen days of the receipt of the order of appointment by him from the Manager or within such extended time as may be allowed to him, by the Management.

(2) The Management shall comply with the directions, give under subrule (1) and report compliance thereof to the Board through the Inspector.

(3) Where the candidate, referred to in subrule (1), fails to join the post within the time allowed in the letter of appointment or within such extended time as the Management may allow in this behalf or where such candidate is otherwise not available for appointment, the Inspector may, on the request of the Management, intimate fresh name or names standing next in order of merit on the panel, under intimation to the Joint Director and the Board, and the provisions of suchrules (1) and (2) shall mutatis mutaindis apply.

(4) The Joint Director shall monitor and ensure that the candidates selected by the Board join the institution in the specified time and for this purpose, he may issue such directions to the Inspector as he thinks proper.

Procedure for recruitment by promotion. (1) Where any vacancy is to be filled by promotion all Teachers working in trained graduates grade or certificate of Training grade, if any, who possess the qualification prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the Lecturers grade or the trained graduates grade, as the case may be, without their having applied for the same.

Note. For the purposes of this subrule, regular service rendered in any other recognised institution shall be counted for eligibility unless interrupted by removal, dismissal or reduction to a lower post.

(2) The criterion for promotion shall be seniority subject to the rejection of unfit.

(3) The Management shall prepare a list of teachers referred to in subrule (1), and forward it to the Inspector with a copy of seniority list, service records, including the character rolls, and a statement in the proforma given in AppendixA.

(4) Within three weeks of the receipt of the list from the Management under subrule (3), the Inspector shall verify the facts from the record of his office and forward the list to the Joint Director.

(5) The Joint Director shall consider the cases of the candidates on the basis of the records referred to in subrule (3) and may call for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee referred to in subsection (1) of Section 12 and after the Committee''s recommendation, shall forward the panel of selection candidates within one month to the Inspector with a copy thereof to the Management.

(6) Within ten days of the receipt of the panel from the Joint Director under subrule (5) the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorization under its resolution issue the appointment order in the pro forma given in Appendix ''F'' to such candidate.

Procedure for adhoc appointment by promotion. (1) Where adhoc appointments of Teacher in respect of vacancies to be filled in by promotion, are to be made under Section 18 of the Act the Management shall consider the cases of such Teachers who are working in trained graduate or certificate of teaching grades and possess the qualifications prescribed under the Intermediate Education Act, 1921 or the Regulations made thereunder and have put in at least five years continuous service as such on the date of occurrence of vacancy for promotion to the Lecturers grade or the trained graduates grade, as the case may be, on the basis of seniority subject rejection of unit without their having applied for the same."

A bare perusal of Rule 14 would go to show that incumbent who has completed five years continuous regular service on the first day of the year of recruitment has to be considered for first promotion to the Lecturers grade without their having applied for the same. This Court in the case of Sunil Kumar Mishra v. Regional Selection Committee, (2004) 2 UPLBEC 1520, has taken the view that when vacancy is to be filled up by way of promotion, the date on which vacancy occurs should be construed as date falling in the year of recruitment. It has also been held that if any other interpretation is given then it would give handle to the Committee of Management to hold back procedure of promotion in order to enable the persons who are ineligible on the date when vacancy has occurred to become eligible for promotion on subsequent date, and thereafter initiate process of recruitment either by way of direct recruitment or by way of promotion. Against this very judgment, in Special Appeal Division Bench of this Court in the case of Subhash Prasad v. Regional Selection Committee, 2004(3) E&C 1385, while construing the year of recruitment has taken the view that first day of the year of recruitment has to taken to be that year of recruitment in which vacancy was ascertained for being forwarded to the Commission through the Inspector ensuring that it reached the Inspector by 15th of July. Further it has been mentioned in the said judgment that the zone of consideration or the field of eligibility of eligible and suitable candidates cannot be permitted to be enlarged at the whims of the Committee of Management or get enlarged on account of its failure to either ascertain the vacancy or send it to the Inspector in the manner prescribed or delay the action contemplated under Rule 14(3) of the Rules, 1995.

The two decisions in the case of Sunil Kumar Mishra and Subhash Prasad thus, clearly stipulate that the year of recruitment cannot be moulded at the whims and fancies of the Committee of Management and the same has to be static. As far as promotion is concerned, candidature of all eligible candidates has to be considered who are eligible for promotion on the first day of the year of recruitment even without moving application in this regard. The first day of the year of recruitment has to be taken to be that year in which vacancy is ascertained in terms of the Rules.

Now in the context of U.P. Act No. V of 1982 and 1998 Rules, what would be the first day of the year of recruitment is to be seen. Section 2(1) of the Act defines year of recruitment, as meaning a period of twelve months'' commencing from July 1st of calendar year. Section 10 of the Act, obligates the Management to determine number of vacancies existing or likely to fall vacant, during the year of recruitment and notify the vacancies to the Board. Section 10(2) provides that procedure of selection of candidates for direct recruitment, shall be such as may be prescribed. Proviso to the said section, talks of wide publicity to invite talented persons. Rule 4 provides that a candidate for direct recruitment must have attained age of 21 years on 1st day of July of calendar year when vacancy is advertised. Rule 5 deals with academic qualifications. Rule 10 deals with source of recruitment and as far as post of Lecturers and LT grade Teachers are concerned 50% of the vacancies, in respective grade is to be filled up by way of promotion and 50% by way of direct recruitment. Said Section further provides that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the post may be filled up by direct recruitment. Rule 11 deals with determination of vacancies, in terms of Section 10(1) of the Act. Rule 11(2) (a), talks of statement of vacancies, to be filled by direct recruitment, including vacancies that are likely to arise on account of retirement on the last of year of recruitment to be sent by Inspector by July 15 of the year of recruitment and thereafter by the Inspector to the Board by 31st July. Rule 11(4), in the event of failure on the part of Management, empowers the District Inspector of Schools, to determine and notify the vacancies, and this action of District Inspector of Schools is to be treated as action on behalf of Management. Rule 12 deals with procedure for direct recruitment. Rule 13 deals with intimation of name of selected candidates Rule 14 deals procedure for promotion. Rule 16 deals with adhoc promotion.

All these provisions taken together clearly show that first day of the year of recruitment starts from 1st July and ends on 30th June, next. Vacancies has to be determined in every year of recruitment, and in case in any year of recruitment, suitable eligible candidates for promotion are not available then the said post has to be filled up by way of direct recruitment. Vacancies which are determined, is inclusive of vacancies which are likely to fall vacant on account of retirement on the last day of year of recruitment and which has to be notified by July 15 of the year of recruitment, by Managing Committee to Inspector to Board by 31st July. The scheme of the Act and Rules, points out towards one direction that the zone of consideration or the field of eligible'' can not be enlarged on account of failure to either ascertain the vacancy or send it to the Inspector, in the manner prescribed or delay the action contemplated, year of recruitment has to be, when vacancy has to be ascertained. Distinction in between expressions recruitment and "appointment" has been noted by Hon''ble Apex Court in the case of Protulla Kumar Swain v. Prakash Chandra Mishra, JT 1993(1) SC 360. Word ''Recruitment'' connotes and signifies enlistment, acceptance, selection or approval for appointment, and in contra distinction word "appointment" means an actual act of posting a person to particular office. In the said judgment, Apex Court has mentioned that recruitment is just an initial process that may lead to eventual appointment in service. Thus, year of recruitment is not liable to be changed and merely because there has been delay in taking up the proposal, same will not enlarge the zone of consideration and make ineligible incumbent, eligible.

Qualification in respect to appointment by way of direct recruitment and promotion has been differently dealt with. A candidate for direct recruitment, as per Rule 4 has to be of 21 years of age on the first day of July of the calendar year when vacancy is advertised. For direct recruits relevant date for age is first day of July of the calendar year when vacancy is advertised, and not the first day of the year of recruitment. For direct recruits academic qualification is specified in Rule 5 which implicits in itself, Regulation I of Chapter II of Regulations framed under U.P. Intermediate Education Act, 1921. For promotion same qualification is required, but with addition of experience of five years continuous regular service on the first day of the year of recruitment. In case on the first day of year of recruitment, if no eligible candidate is present in the institution then the said vacancy will go towards direct recruitment quota, which would be an exception to the rules. Thus vacancy is to be ascertained in every year of recruitment. The ''year of recruitment'' qua promotions is static and cannot be changed:

This Court in the case of Nand Kishore v. Joint Director, 2003(51) ALR 176, has taken the view that when proposal is being considered, the same is relevant year of recruitment. Said judgment has not taken note of other provisions as it exists under U.P. Act No. 5 of 1982 and the 1998 Rules, which have been referred to above. The view taken by learned Single Judge is contrary to the view taken by Division Bench of this Court in the case of Subhash Prasad v. Regional Selection Committee, 2004(3) E&C 1385 and as Division Bench Judgment is still holding the field as such same is being followed. The said Division Bench judgment was not cited before the learned Single Judge.

In the facts of the present case, on the principles noted above, as far as post of Lecturer in Economics is concerned, first day of the year of recruitment would be 1.7.1999 and qua the aforementioned first day of the year of recruitment, eligibility of L. T. Grade Teacher Rajesh Kumar Naval is to be seen from the record, which has been furnished by the Management. As far as Rajesh Kumar Naval is concerned, his first day of the appointment in the institution is 6.7.1999 and thus on the first day of year of recruitment he has not completed five years continuous regular service. Coupled with this is has contended by the petitioner that Masters degree has been acquired by Rajesh Kumar Nawal on 31.8.2003. If all these statements of fact, which have been furnished by the petitioner and Management Committee, are true, when certainly Rajesh Kumar Nawal is not eligible to be promoted as Lecturer in Economics. But if the facts so furnished are incorrect, then claim of Rajesh Kumar Nawal can be tested in the light of provision, as contained in U.P. Secondary Education Services Selection Board Rules, 1998. Date of resolution in no way will change the year of recruitment qua promotion, as date of year of recruitment in the matter of promotion has to be static. Now the question is as to which authority the matter should be relegated to for considering the claim of petitioner that post of Lecturer in Economics could not have been filled by way of promotion as no one was eligible there in the institution concerned on the first day of year of recruitment, entitled to be promoted, as Lecturer in Economics and further post of Lecturer in Sanskrit, fell within 50% quota and had to be field up by way of promotion.

In the present case, the Joint Director of Education is competent authority to consider all these question of fact, in terms of Rule 12(5) of 1998 Rules which are sought to raised in the present case.

In view of this fact, liberty is given to petitioner to make fresh representation along with certified copy of the order passed by this Court before the District Inspector of Schools of the concerned district within six weeks from today. In case such representation is moved, then District Inspector of Schools shall call for the entire record as per 1998 Rules and transmit the same before the Joint Director of Education. Joint Director of Education shall call for comments from the Managing Committee of the institution as well as Rajesh Kumar Nawal and thereafter proceed to adjudicate the claim of petitioner in accordance with law, by means of reasoned and speaking order, preferably within period of three months from the date of production of certified copy of this order. Whatsoever decision is taken on the same, same be communicated to the petitioner as well as other parties.

With these observations, writ petition is disposed of.