JUDGMENT

S. C. AGRAWAL, J.:—This appeal is directed against the judgment dated May 7, 1984 of the High Court of Judicature at Allahabad in Civil Miscellaneous Writ Petition No.9686 of 1979 : (Reported in 1985 UPLBEC 84) relating to appointment on the post of L.T. Grade teacher in Home Science for high school classes in Mahila Seva Sadan Inter College, Allahabad, hereinafter referred to as the college, governed by the U.P. Intermediate Education Act, 1921, hereinafter referred to as the Act and the regulations framed thereunder, hereinafter referred to as the Regulations.

2. The appellant obtained T. C. Diploma (Teachers certificate) in home science from the College of Home Science, Allahabad in 1966. She was appointed as a C.T. Grade teacher in Home Science in the College in 1966. While thus employed she obtained the B.A. degree with Urdu, Education and Sociology from the Kanpur University in December, 1974. Two posts of L.T. grade teacher out of which one was in Home Science were sanctioned for the high school section of the College on August 29, 1977 by the Director of Education, Allahabad. The case of the appellant is that the said post of L.T. grade teacher in Home Science should have been filled by promotion and if so filled, she would have been appointed in the said post, but instead of being filled by promotion, the said post was filled by direct recruitment and for that purpose, an advertisement was published on October 21, 1977 inviting applications from candidates who were trained graduates in Home Science. As the appellant was not a trained graduate in Home Science on that date she did not apply though she obtained the B.A. degree in Home Science from Kanpur University on November 2, 1977. Shrimati Suman Srivastava, respondent No. 6 was ultimately selected and appointed on the said post by order dated October 17, 1979. Feeling aggrieved by the said appointment of respondent No.6, the appellant filed the writ petition giving rise to this appeal, in the Allahabad High Court. The said writ petition has been dismissed by the Division Bench of the High Court by judgment dated May 7, 1984*. The High Court has held that the appellant could not be appointed on the post of L.T. Grade teacher by promotion for the reason that on the relevant date she was not eligible for promotion to the post since she did not possess the minimum qualifications prescribed therefor and further that up to 40% of the total number of posts in the college could be filled up by promotion and that the appellant had failed to establish that 40% of the appointments made in the college in the L.T. Grade were not made by promotions but by direct recruitment. The appellant has assailed both the grounds on which the High Court has decided against her.

* Reported in 1985 UPLBEC 84

3. At the relevant time, teachers in high school classes were placed in two grades, (i) C.T. grade having the scale of Rs. 250-425 and (ii) L.T. grade having the scale of Rs. 300-550, with regard to appointment on a post in L.T. grade provision was made in Clause (1) of Regulation 5 that every vacancy in the post of teacher in a recognised institution shall except as otherwise provided in cl. (2) be filled by direct recruitment. In sub-cl. (a) of cl. (2) of Regulation 5 it was provided:

"(2)(a) Forty per cent of the total number of the sanctioned posts in lecturers grade or in the L.T. grade shall only be filled by promotion from amongst the teachers working in the institution in the L.T. and the C.T. grades respectively and promotions shall be made subject to availability and eligibility of such teachers for promotion".

4. Clause (1) of Regulation 6 prescribed as under-

"6(1). Where any vacancy in the lecturers grade or in the L.T. grade as determined under regulation 5, is to be filled by promotion, all teachers working in the L.T. or the C.T. grade as the case may be, having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacanc