JUDGMENT
Bharati Sapru, J.
1. Heard learned Counsel for the petitioner, learned Counsel for the respondent No. 3 and learned Standing Counsel.
2. This writ petition has been filed by the petitioner seeking a writ of certiorari for quashing the orders dated 4.12.2001, 18.12.2001 and 16.1.2002 (Annexure 8, 9 & 11 to the writ petition) passed by respondent No. 1 by which he has recommended the case of the respondent No. 3 for promotion as a teacher in the Lecturer Grade in the institution in question.
3. Admittedly the facts are that there are six posts sanctioned on the posts of lecturer in the institution in question under the provisions of Rule-14 of the U.P. Secondary Education Services Board rules 1998, 50% of the posts are to be filled by direct recruitment and the rest 50% by promotion in the institution in question, therefore, only three posts are to be filled by way of promotion.
4. The petitioner’s contention is that he is the senior most teacher in the L.T. Grade and, therefore, when the vacancy arose on 1st of July 2001. He was the only teacher who fulfilled the requirement of Rule-14 and was the only teacher who fulfilled the eligibility criteria and was entitled to be promoted under rule-14. The management of the College sent the papers of the petitioner for consideration of promotion to the District Inspector of Schools but the District Inspector of Schools passed no orders on these papers instead the respondent No. 3 set up a case for being SC/ST candidate he was entitled to promotion on the basis of the reservation roster.
5. Learned Counsel for the petitioner has made two arguments the first argument is on the basis of a judgment of this Court in the case of Yogendra Pal Singh v. The District Inspector of Schools reported in 2000 (3) UPLBEC 2155 wherein this Court has held that Rule-14 (1) of the rules aforesaid contemplates 5 years continuous teaching service on a regular and substantive basis and, therefore, the petitioner argues that the respondent No. 3 was not entitled to be considered for promotion as on the date of vacancy i.e. on 1.7.2001. The respondent No. 3 had not completed 5 years regular service on a substantive post as he had been regularised in the year 1998.
6. The second argument of the learned Counsel for the petitioner has been made on the basis of another decision of this Court in the case of Asha Jaiswal v. Joint Director of Education reported in 2004 (2) UPLBEC 1837 wherein this Court has held that upon a consideration of the provisions of Section 10 of the UP. Secondary Education Services Selection Boards Act 1982 and the rules of 1998 of the rule 14 the reservation policy cannot be applied because the act aforesaid does not contain any provision for reservation in promotion cases Article 16(4) and 16(4)A the Court held there are enabling provisions which empowers government to enact legislation for providing reservation and while Section 10, of the Act aforesaid provided for reservation in the case of direct recruitment makes no specific provision for reservation in cases of promotion, therefore, the petitioner contains the reservation roster will have no application in the cases of promotion under rule 14 of the rules.
7. Learned Counsel for the respondent No. 3 has argued that he is entitled to be considered on the basis of reservation. The reservation roster according to him is provides for 21% reservation in promotion cases. There are only three posts although the argument of the learned Counsel for the respondent No. 3 that the rule provides for reservation cannot be accepted, even then if for a moment it is to be taken for reservation would be followed in a case of promotion then the percentage being 21% clearly there would have to be at least 6 posts by way of promotion in order to apply the roster for reservation in the institution in question, there are only three posts, therefore, the reservation roster could not have been applied while considering the case of promotion.
8. Learned Counsel for the petitioner has argued that the respondent No. 3 who regularised in the year 1993 and, therefore, had not completed 5 years on the date of the occurrence of the substantive vacancy.
9. In a recent judgment reported in 2006 (1) U.P. Local Bodies and Educational Cases 76 in the case of Suman Bhatnagar (Smt) v. State of U.P. and Ors. this Court has interpreted Rule 14 of the U.P.S.E.S.S.B. Act 1982 and has held in paragraph -10 of the said judgment that the word used in the Section is ‘regular’ and is not synonymous with the word ‘substantive’ The Court has further held that further regular service need not be substantive in nature. The Court has interpreted the service which is an appointment made under the Rules and not de-hors the rules so as to make it irregular and, therefore, has consequently held that it would not be appropriate to equate the word ‘regular’ with the word ‘substantive’. I am in respectful agreement with the decision of this Court in the case of Suman Bhatnagar (Smt.) v. State of U.P. and Ors. as cited above.
10. Learned Standing Counsel has however, filed counter affidavit saying that the respondent No. 3 was regularised in the year 1993. Such being the case I deem it appropriate that the papers of both the petitioner and respondent No. 3 be sent to the District Inspector of Schools for consideration in the case of promotion. It is needless to say that the District Inspector of Schools only has to determine who is the senior most teacher amongst the two for the purposes of Rule -14 and is, therefore, the most suitable candidate under rule-14, the papers of both the petitioner and the respondent No. 3 will be sent by the management within a period of 10 days from the date of issuance of a Certified Copy of this judgment and the District Inspector of Schools will determine the issue in accordance with the provisions of rule-14, within a period of one month thereafter. The D.I.O.S. is directed to take a decision in line with the decision made in the case of Suman Bhatnagar (Smt.) v. State of UP. and Ors. as reported in 2006 (1) U.P.L.B.E.C. The impugned orders dated 4.12.2001, 18.12.2001 and 16.1.2002 (Annexure 8, 9 & 11 to the writ petition) are quashed and set aside.
11. It may be made clear that the reservation roster has no application in the present case, all other things will be decided as per the eligibility criteria laid down under Rule 14.
12. The Writ Petition is allowed. There will be no order as to costs.