A senior-most teacher qualified to the post should be promoted on an ad hoc basis under Section 18 (1) (b) of the U. P. Secondary Education Services Commission and Selection Boards Act, 1982. Direct recruitment could be resorted to only when a qualified senior-most teacher is not available.

1. By this petition the petitioner, a Physical Training teacher in the Inter College, Machhlishahr, district Jaunpur, in L. T. grade, seeks quashing of the order dated 3-4-1989 (Annexure "4" to the writ petition) passed by the District Inspector of Schools, Jaunpur, respondent no. 1, disapproving the resolution of the Committee of Management dated 24-2-1989, whereby the petitioner was promoted as a lecturer in Civics. The Committee of Management, respondent no. 2. made the appointment of the petitioner as lecturer in Civics in the aforesaid institution on the ground that he was senior-most teacher in L. T. grade in the institution and forwarded the papers relating to such appointment of the petitioner to the respondent no. 1 for approval. While refusing to accord approval to the resolution of the Committee of Management, the respondent no. 1 observed that the appointment of the petitioner as lecturer in Civics was contrary to the rules on the grounds : (i) that the appointment of the petitioner was beyond the sanctioned strength of lecturers in the College ; (ii) that whereas vacancy on account of the retirement of Sri Krishna Lal Vaishya arose in the year 1981, the petitioner passed M. A. in Political Science in the year 1987 and, therefore, he was not qualified when the vacancy arose ; (iii) that the vacancy having not been filled in within the period of three months, the post had lapsed and no appointment could be made thereon unless the post is sanctioned afresh ; and (iv) that the petitioner being a Physical Training teacher could not be promoted as a lecturer in Civics.

2. Chief point for consideration in this case is whether a senior-most Physical Training teacher can stake claim for ad hoc promotion under Section 18 (1) (b) of the U. P. Secondary Education Services Commission and Selection Boards Act, 1982 (briefly "the Act 1982"). It is not disputed that on the retirement of Sri Krishna Lal Vaishya, a lecturer in Civics, in the year 1981, a substantive vacancy arose, which was notified to the commission and no appointment having been made within the stipulated time by the commission, the said vacancy was filled up by the Committee of Management by having appointed the petitioner by resolution dated 24-2-1989 (Annexure "2" to the writ petition). Also there is no dispute that the petitioner was senior-most teacher in L. T. grade on the date of appointment and that he was M.A. in Political Science on that date. The respondent no. 1, however, said that the petitioner having passed M.A. much after the date of occurrence of the vacancy could not be said to be qualified for being appointed as lecturer. The vacancy arose in the year 1981 and the petitioner, who was appointed by the resolution dated 24-2-1989, passed M.A. in the year 1987. So the other question is whether the petitioner could be said to be qualified to the post of lecturer.

Section 18 (1) (b) of the Act, 1982, states that where the Management has notified a vacancy of the Commission in accordance with the provisions of the Act and the post of such teacher has actually remained vacant for more than two months, then the Management may appoint by direct recruitment or promotion a teacher purely on ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921, or the Regulations framed threunder. From this provision it is manifest that when a vacancy is notified to the Commission, which is not filled in for more than two months by the commission, then the Management acquires a right to make ad hoc appointment either by direct recruitment or promotion. A plain reading of clause (b) of Section 18 (1) of the Act, 1982, gives an impression as if an option is given to the Management either to make the ad hoc appointment by direct recruitment or by promotion, but looking to the legislative background of the Act and other provisions of the Statute, legal position that arises is that it is not pure and simple