Honble H.L. Gokhale, CJ.—The dismissal of the writ petition filed by the petitioner for setting aside the order dated 6th May, 2003 passed by the Joint Director of Education holding the petitioner ineligible for promotion to the post of Lecturer in an Intermediate Institution situated in District Jaunpur has led to the filing of this Special Appeal.

2. The petitioner appellant had joined as LT grade teacher in the Institution on 1st November, 1996. A Lecturer in Physics in the Institution retired on 30th June, 2001 and the resultant vacancy was required to be filled up by promotion. The Committee of Management resolved on 1st July, 2002 to promote the petitioner and thereafter forwarded the papers relating to promotion of the petitioner on 16th August, 2002 but the Joint Director of Education by the order dated 6th May, 2003 rejected the proposal of the Committee of Management on the ground that the petitioner did not have the requisite five years continuous regular service on the first day of the year of recruitment.

3. The learned Judge examined the relevant provisions of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the “Act") and the provisions of U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the 1998 Rules’) and in view of the Division Bench judgment of this Court in Subhash Prasad v. Regional Selection Committee through its Chairman and others, 2004 (3) ESC 1385, wherein it was observed that the first day of the year of recruitment is that year in which the vacancy is ascertained in terms of the 1998 Rules, concluded that since the vacancy had occurred on 1st July, 2001, the first day of the year of the recruitment would be 1st July, 2001 and since on that date, on the own showing of the retitioner, he did not have five years continuous regular service, he was not eligible for promotion.

4. We have heard Sri Ashok Khare, learned Senior Counsel for the appellant assisted by Sri R.S. Maurya as well as Dr. Y.K. Srivastava, learned Standing Counsel appearing for respondent Nos. 1, 2 and 3.

5. Sri Ashok Khare, learned Senior Counsel for the appellant submitted that the year of recruitment is the year in which actual recruitment takes place and not the year in which the vacancy occurs. It is his submission that since there is a change in the language contained in Rule 14 of the 1998 Rules in comparison to what is contained in Regulation 6 of Chapter II of the U.P. Intermediate Education Act, 1921 wherein the eligibility is required to be seen on the date of occurrence of the vacancy, the intention of the Legislature while framing the 1998 Rules was to deviate from the existing position and so the year of recruitment should only mean the year in which the recruitment takes place in support of his contention he has placed reliance upon the decision of the Supreme Court in Harish Chandra Ram v. Mukh Ram Dubey and others, 1994 Supp. (2) SCC 490.

6. On the other hand Dr. Y.K. Srivastava, learned Standing Counsel has submitted that the consistent view of this Court has been to treat the first day of the year of recruitment as the year in which the vacancy is ascertained and, therefore, the petitioner-appellant was not eligible to be promoted under Rule 14 of the 1998 Rules.

7. It is not in dispute that the vacancy on the post of Lecturer was required to be filled up by promotion in accordance with the provisions of Rule 14 of the 1998 Rules which is as follows :

“14. 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 hav