Hon’ble Sudhir Agarwal, J.—With the consent of learned counsels for the parties appearing before this Court, this matter has been heard and is being decided finally under the Rules of the Court at this stage.

2. Heard Sri Anil Bhushan for the petitioner, learned Standing Counsel and Sri K.P. Shukla for respondent Nos. 1 to 3 and 5 respectively. Respondent No. 5, represented by Sri K.P. Shukla, has filed counter-affidavit to which rejoinder affidavit has also been filed. The respondent No. 4 was issued notices, sent through registered post on 6.6.2009 but none has appeared on its behalf. Learned Standing Counsel submitted since only question of law with regard to interpretation of the provision pertaining to academic qualification is involved, he does not propose to file any counter-affidavit and will make his submissions orally.

3. The petitioner is aggrieved by order dated 20.5.2009 (Annexure 6 to the writ petition) passed by Regional Joint Director of Education, Agra (hereinafter referred to as ‘J.D.E.’) disapproving promotion of the petitioner to the post of Assistant Teacher L.T. Grade and revoking approval order of District Inspector of Schools, Agra (hereinafter referred to as “D.I.O.S.”) granting approval to the petitioner’s promotion and simultaneously approving promotion of respondent No. 5 on the aforesaid post.

4. The short controversy, which involves purely a legal issue is whether for promotion to the post of Assistant Teacher (L.T. Grade) one must possess the requisite qualification in the subject concerned or not. In other words, for promotion under 25% quota meant for the Assistant Teacher of the Primary Section, under Rule 10(c)(ii) of U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as “1998 Rules”), whether “educational qualification” must have any bearing with the subject concerned where the post of Assistant Teacher (L.T. Grade) is created without reference to any particular subject.

5. The facts in brief are as under.

6. Swamibagh Uchchttar Madhyamik Vidyalaya, Agra, (hereinafter referred to as “the College”) is a secondary institution governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as ‘1921 Act’) and for the purpose of payment of salary of its staff, it is governed by the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as “1971 Act”). The College constitute attached Primary Section as well as High School.

7. The petitioner was appointed as Assistant Teacher in Primary Section on 1st July, 1989 possessing educational qualification of M.A. (Economics) and B.Ed. while the respondent No. 5 was appointed as Assistant Teacher in Primary Section on 23rd August, 1993 and she also possesses the educational qualification of M.A. and B.Ed.. The petitioner in B.A. had her subjects; General Hindi, Hindi Literature, Economics and Education while the subjects of the respondent No. 5 in B.A. were General Hindi, English Literature, Music and Sanskrit.

8. Admittedly, on the post of Assistant Teacher, the petitioner is senior to the respondent No. 5. Regulation 7-A was inserted in Chapter II of the Regulations on 26th February, 2003 providing for promotion of teachers working in Primary Section to L.T. Grade. A similar amendment was made by inserting Rule 10(c) in 1998 Rules providing that 25% posts shall be filled in by promotion from amongst those trained graduate teachers of attached primary section who have completed five years of satisfactory service.

9. It is said that one post of L.T. Grade teacher fell vacant after the aforesaid amendment and the petitioner being senior most Assistant Teacher in Primary section was entitled to be considered for promotion. The Committee of Management passed resolution on 15th November, 2008 for promotion of petitioner to the said post. It was also approved by the D.I.O.S. vide letter dated 2nd Jan