Hon’ble Devendra Kumar Upadhyaya, J.—Heard learned counsel for the petitioner Sri Anurag Srivastava, Sri Ramesh Pandey, learned counsel for respondent No. 6, Sri Rajan Roy, learned counsel appearing for respondent No. 5 and Sri Manjiv Shukla, learned Standing Counsel appearing for respondent Nos. 1 to 4.

2. Can an employee appointed on compassionate ground be deprived of his right of consideration for promotion to the next higher post though eligible in all respects, solely on the ground that his appointment on compassionate ground was made against supernumerary post deemed to have been created under the relevant rules by operation of legal fiction is the question which has arisen for consideration and determination of this Court in the instant case.

3. Satya Narain Tewari Vidya Mandir Inter College, Nigoha, Lucknow (hereinafter referred to as ‘Institution’) is an institution imparting education upto Intermediate and is recognized under the relevant provisions of U.P. Intermediate Education Act, 1921. The service conditions i.e. appointment and promotion etc. of the non-teaching staff of the Institution are governed by provisions contained in Intermediate Education Act, 1921 and Regulations framed thereunder, which having been framed under the said enactment are statutory in nature.

4. One vacancy in the post of Head Clerk in the Institution occurred on retirement of earlier incumbent Sri Vijay Kumar Shukla on 30.09.2008. As per provisions of Regulation 2 (2) of Chapter III of the Regulations framed under the Act, 50% posts of total sanctioned posts of Head Clerk and Clerk are to be filled in by way of promotion from amongst the Clerks and Class IV employees respectively. The eligibility for such promotion under Rule 2 (2) of the Regulations is that the employee concerned should possess the eligibility qualification and should have worked continuously for five years in substantive capacity. The promotion under the said regulation is to be made on the criteria of seniority subject to rejection of unfit.

5. There is no dispute that the post in question i.e. the post of Head Clerk, which fell vacant on retirement of Sri Vijay Kumar Shukla on 30.9.2008, was to be filled in by way of making promotion under Regulation 2 (2) of the aforesaid Regulations from amongst the eligible employees working in the Institution against the post of Clerk. The petitioner was initially appointed on 17.10.1992 on compassionate ground on the post of Junior Clerk because of the death of his father, who died in harness while working as L.T.Grade Teacher. The respondent No. 6 was appointed as Junior Clerk in the Institution in the year 1998. Another incumbent working in the Institution on the post of Junior Clerk, namely, Sri Bhubneswar Prasad Pandey had declined to be promoted to the post of Head Clerk and as such, the candidature of remaining two candidates, namely, the petitioner and respondent No. 6 was considered by the Committee of Management of the Institution, which, by means of its resolution dated 14.11.2008 decided to promote respondent No. 6 and rejected the claim of the petitioner on the ground that since the petitioner was appointed on compassionate ground against a supernumerary post, as such he was not appointed against substantive post and hence, was not eligible to be considered for promotion to the post of Head Clerk.

6. Based on the aforesaid decision of the Committee of Management taken in its meeting held on 14.11.2008, the District Inspector of Schools, Lucknow accorded his approval for payment of salary to respondent No. 6 by means of order dated 8.12.2008. The aforesaid resolution dated 14.11.2008 of the Committee of Management of the Institution and the order dated 8.12.2008 passed by the District Inspector of Schools have been assailed by the petitioner in the instant writ petition. The petitioner has also prayed for quashing the order of promotion of respondent No. 6 on the post of Head Clerk and further that responden