Eligibility for promotion under the 40% quota for promotion as per Regulation 5 (2) (a) of the U. P. Intermediate Education Act requires a teacher to have a minimum of five years continuous substantive service on the date of occurrence of the vacancy.

The petitioners claims that they should have been promoted from C. T. Grade to L. T. Grade on account of their eligibility in the 40% quota for promotion as provided under Regulation 5 (2) (a), Chapter II of the Regulation framed under the U. P. Intermediate Education Act. Instead the respondents by the impugned order dated 17-9-85 con firmed and regularised the appointments of three teachers who were engaged in 1978 by way of regularisation. This order has been challenged in the writ petition. In the counter-affidavit it has been pointed out that on the date when the vacancy occurred the petitioners were not eligible for being promoted and therefore the promotion cannot be given.

2. I have heard learned Counsel for the petitioner and learned Standing Coun sel.

3. By reason of the said provision 40% vacancy of the sanctioned posts in L. T. Grade is to be filled by promotion from amongst the teachers working in the C. T. Grade subject to availability and eligibility of such teachers for promotion. The said availability and eligibility is qualified by reason in Regulations 5 and 6 of Chapter-II framed under U. P. Inter mediate Education Act which provides as follows:-

"5. (1) Every vacancy in the post of teacher in a recognised institution shall except as other wise provided in clause (2) be filled by direct recruitment.

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 in stitution in the L. T. and the C. T. grades respec tively and promotions shall be made subject to availability and eligibility of such teachers for promotion.

(b) If more than forty per cent of the total number of the sanctioned posts in the lecturers grade or as the case may be, in the L. T grade have already been filled by promotion, the per sons already promoted shall not be reverted.

(c) In computing forty per cent of the post under clause (a) fraction of less than one half shall be ignored while fraction of1 one-half or more shall be reckoned as one.

Explanation.- (1) The expression "sanc tioned post" means any post not being a post created temporarily for a specified-period, which is created by an order of the authority com petent to create such post and includes a post on which appointment has been made with the ap proval of the Inspector.

(2) The post held by a teacher who, while working in an institution in a lower grade (was appointed) to a higher grade in that institution through direct recruitment shall not be deemed to have been filled by promotion.

(3) For purposes of this regulation, teachers duly appointed in any manner prior to the coming into force of the Intermediate Education (Amendment) Act, 1958 (U. P. Act No. XXXV of 1958) shall be deemed to have been appointed through direct recruitment.

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 vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the lecturers grade or in the L. T grade is required.

Note.-For purposes of this clause, ser vice rendered by a teacher in the L. T. or the C. T. grade in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to a lower post.

(2) Selection for promotion to the next higher grade shall be made on the basis of ser vice standing, achievements in service, academic qualifications and integrity.

(3) Subject to clause (2) where more than one teacher in the L. T grade are eligible for promotion to the post of lecturer in an