JUDGMENT U.C. Srivastava, J. - The order of District Inspector of Schools who redecided the matter in pursuance of a mandamus issued by this Court disapproving the promotion of the petitioner, a teacher in Union Intermediate College, Ram Nagar, District Barabanki, and thereby approving the opposite party no. 4 to the said grade in the same institution has led the filing of this petition by the petitioner. In response to an advertisement inviting applications for trained or untrained B.So (Agriculture) teacher in the institution, the petitioner also applied for the same. As the petitioner was selected for appointment in the grade of Rs. 120-6-168-EB-9-240-10-300 plus usual D.A. and was appointed on one year's probation with benefit of Provident Fund Subject to confirmation. The appointment was subject to the approval of District Inspector of Schools. The appointment of petitioner on one years' probation was duly approved by District Inspector of Schools on 17-10-1965. The grade of Rs. 120 - 300 was prescribed in G.O. No. C-2808/ - XV-1723-59, dated July 27, 1959 for graduates who were exempted from training qualification for the post of Assistant Teachers teaching High School Classes. It is not known that whether prior to advertisement the institution had taken exemption for Agriculture Teacher from the Board of High School and Intermediate Education, the competent body for the same. U.P. Intermediate Education Act because of non - availability of trained agriculture teachers or for any other reason. From the grant of approval to petitioner's appointment on probation no presumption as such can be drawn in the absence of any other material on the record. The petitioner on completion of one year's probation was confirmed on 27-7-1964. He passed M.A. (Eco.) in 1970 and passed B.Ed., Examination in 1972. From 1972 he was given the pay - scale of trained teacher, and was placed in the seniority list at no. 4 while opposite party Rajendra Singh was placed at no. 6. Rajendra Singh who was B.Sc., L.T., was appointed teacher some six years after the appointment of petitioner, that is, on 5-8-1969 which was approved by the District Inspector of Schools on 29-12-1969. He was confirmed on 5-8-1970 that is the year in which petitioner passed M.A. Examination. Opposite party Rajendra Singh passed M.A Examination in the year 1974 and ever since his appointment his salary was always lesser than that of the petitioner. He was confirmed on 5-8-1970 that is the year in which petitioner passed M.A. Examination. Opposite party Rajendra Singh passed M.A Examination in the year 1974 and ever since his appointment his salary was always lesser than that of the petitioner. On the retirement of one Sri Verma a vacancy of teacher in Economics occurred on 27-10-1973. The Committee of Management promoted the petitioner to the post of Lecturer vide resolution dated 10-9-1976 which was approved by the District Inspector of Schools on 16-10-1976. According to Regulation 6 (1) of Chapter II of the Regulations framed under U.P. Intermediate Education Act, all teachers working in L.T. or the C T. grade as the case may be having a minimum of 5 years of continuous substantive service to their credit are entitled to be considered without applying for the same provided they possess the minimum qualification for the teaching the subject in which the teacher in Lecturer grade or in the L.T. grade is required. The minimum educational qualification for lecturer at the relevant point of time was also post-graduate degree preferably trained. The Inspector of Schools approved the resolution regarding petitioner's promotion to the post of lecturer on 16th October, 1976 and rejected the representation of Rajendra Singh purporting to be under Regulation 3 (1) (F) of the regulations in which he claimed seniority and contended the petitioner not to be qualified for the promotion in question. 2. Against this order the opposite party Rajendra Singh filed a writ petition which was allowed on 30-10-1978 by a Division Bench of which one of us was a Member on the ground that it was not a speaking order. The Inspector of Schools was directed to decide afresh whether or not the approval should be given to the resolution of the Committee of Management proposing the appointment of the petitioner Dinesh Pratap Singh to the post of Lecturer in Economics in conformity with the requirements of the Act and the Regulation. The Inspector of Schools thereafter cancelled the promotion and vide order date 4-5-1979 held Rajendra Singh to be senior as prior to doing B.Ed., the appointment of the petitioner was taken to be ex-cadre appointment and Rejendra Singh was held to be qualified for the post of Lecturer. It was thereafter that the instant writ petition was filed. 3. The Inspector of Schools thereafter cancelled the promotion and vide order date 4-5-1979 held Rajendra Singh to be senior as prior to doing B.Ed., the appointment of the petitioner was taken to be ex-cadre appointment and Rejendra Singh was held to be qualified for the post of Lecturer. It was thereafter that the instant writ petition was filed. 3. Before considering the question of qualification it would be relevant to consider as to when vacancy occurred and what would be the appropriate date for considering the qualification of the candidates entitled to be promoted to the post of Lecturer. Regulation 6 (1) of Chapter II of the Regulations reads as under "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 lecturer's grade or in the L.T. grade is required. Note :- For purposes of this clause, service 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 service 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 any Subject preference shall be given to the teacher who is senior most amongst them in service in that grade. (4) (a) The claim of any teacher who is eligible for promotion shall not be ignored merely because he has proceeded on long leave or is officiating or working temporarily on a post in the higher grade. (b) In the case of a teacher who is under suspension, the claim for promotion shall not be ignored if he is reinstated prior to the selection for promotion. (5) ............. (i)................ (ii) ........... (iii) .......... (iv).............. (v) ............ (b) In the case of a teacher who is under suspension, the claim for promotion shall not be ignored if he is reinstated prior to the selection for promotion. (5) ............. (i)................ (ii) ........... (iii) .......... (iv).............. (v) ............ (vi) ........... (vii) .......... 4. According to Regulation 6 (1) the relevant date for considering minimum qualification is the date of occurrence of vacancy. A vacancy in existing post which is not abolished comes into existence when permanent incumbent to it resigns, retires or dies. The creation of vacancy is not dependent on the appointment to the said post as and when it is made. In the instant case the vacancy thus occurred on 1-10-1973 the date on which permanent incumbent retired from service. 5. When the vacancy occurred opposite party Rajendra Singh was not qualified to become Lecturer as he was not M.A. then as he post-graduated in the year 1974. He had also not completed 5 years of continuous service in L.T. grade having been appointed in the year 1973. As such he had no locus standi to lay a claim for the post. In the earlier writ petition which was allowed on a short ground this and other questions were not considered. He not being qualified had no right now to question the appointment of the petitioner in preference to him. This renders the entire proceedings initiated in this behalf by him illegal as a promotion and appointment cannot be questioned by one who is not entitled to it. 6. So far as petitioner is concerned he was appointed in pursuance of an advertisement which invited applications both from trained as well as untrained graduates and was silent as to the nature of appointment. The Management appointed him on probation which was duly approved by Inspector of Schools and later on after one year he was confirmed in 1964. His appointment as Agriculture teacher even though he was untrained was permissible and not void. The question was whether he could have been appointed on probation and confirmed without attaining necessary qualification. Assuming that his confirmation was not regular and he would be deemed to be continuing as irregularly confirmed teacher in the year 1972 when he attained B.Ed. degree his appointment became fully regular and it was since then he was given trained teachers' grade. Assuming that his confirmation was not regular and he would be deemed to be continuing as irregularly confirmed teacher in the year 1972 when he attained B.Ed. degree his appointment became fully regular and it was since then he was given trained teachers' grade. In Ram Swarup v. State of Haryana, ( AIR 1978 SC 1536 ) the appellant was appointed as Labour-cum-Conciliation Officer. Rule 4 (1) of the Punjab Labour Service (Class I and 11) Rules, 1955, provided for minimum qualification as 5 years experience of the working of Labour Laws as Labour Inspector. The appellant was short of this qualification when he was appointed yet he continued to hold the post for nine years after which he was reverted to the post of Statistical Officer. During this period he had already completed 5 years of experience. The Supreme Court held that "we are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications, but as soon as he acquired the necessary qualification of five years experience of the working of Labour Laws in any one of the three capacities mentioned in clause (1) of Rule 4 or in any higher capacity his appointment must be regarded as having been regularised. It was found as a matter of fact that before the order of reversion was passed the appellant had the necessary five years' experience." 7. It was held that his appointment was not void and he will be deemed to have been appointed to that post only on the expiry of a period of five years calculated from the date when he was appointed Chief Inspector of Shops. 8. On the same reasoning the petitioner who was untrained when appointed which appointment was permissible could be deemed to have been confined when he passed B.Ed., Examination in 1972. The question will be whether it could be said that there was 5 years' continuous substantive service to his credit when vacancy for the post of Lecturer occurred. The word "substantive" has not been defined under U.P. Intermediate Education Act or Regulations framed thereunder. As such meaning to this word would be what is considered in General Law relating to service. The word "substantive" has not been defined under U.P. Intermediate Education Act or Regulations framed thereunder. As such meaning to this word would be what is considered in General Law relating to service. In Baleshwar Das v. State of U.P. ( AIR 1981 SC 41 ) it was held that "substantive capacity is flexible expression which cannot be frozen to current officiates, not by the condition that obtained in the remote past when the rule was framed. On the contrary its meaning must be consistent with Article 16 and must avoid pit - falls of arbitrariness and irrational injustice. So viewed we hold that appointment need not necessarily be to a permanent post even if it is to a temporary post of long duration. In a Department which had permanent posts and temporary posts of quasi permanent nature, there is not much to distinguish the quality of service as between the two.When a post is vacant however designated in Officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the posts and not necessarily to the nature or character of the post. To approximate the official diction used in this connection we may well say that a person 'is said to hold a post in substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation. Once we understand 'substantive capacity in the above sense, we may be able to rationalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been approved, one may well say that the post was held by the incumbent in a substantive capacity." 9. The law laid down in the said case was re-affirmed in G.P. Doval v. State of U.P., AIR 1984 SC 1527 : (1984) 4 SCC 329 Baleshwar Dass' case (supra) and Doval's case (supra) were regarding Government Servant and there were Service Rule for their service. The law laid down in the said case was re-affirmed in G.P. Doval v. State of U.P., AIR 1984 SC 1527 : (1984) 4 SCC 329 Baleshwar Dass' case (supra) and Doval's case (supra) were regarding Government Servant and there were Service Rule for their service. The provisions of U.P. Intermediate Education Act and Regulations framed thereunder are somewhat different yet the rules are definite and Specific. They provide for advertisement, selection, approval of appointment by District Inspector of Schools, placement and then confirmation. The petitioner was selected by Selection Committee and Management could have appointed an untrained teacher. Although he became entitled to be appointed Lecturer in 1970 when he passed his M.A., Examination, but his appointment in L.T. Grade if any became regular in 1972. If one year period of probation is added to in October, 1973, when vacancy occurred, he having completed one year after 1972 his confirmation became regular. As his appointment and confirmation became regular or were to be deemed to be regular he became entitled to count the entire service on a post which existed and on which he was appointed as substantive appointment in view of law laid down by Hon'ble Supreme Court referred to above. Thus he fulfilled the requisite qualifications for appointment as Lecturer which could have been placed in jeopardy by any duly qualified candidate who could have claimed seniority over him. The contesting opposite party Rajendra Singh not possessing minimum qualification on the date there was no question of his promotion. As such the promotion of petitioner as Lecturer was legal and valid. The order passed by the District Inspector of Schools holding that the petitioner's appointment was ex cadre and that he was not qualified and that opposite party Rajendra Singh was fully qualified to be appointed as Lecturer is obviously incorrect. 10. In view of what has been stated above the writ petition deserves to be allowed and consequently it is allowed and the order dated 4-5-1979 passed by the District Inspector of Schools is quashed. A mandamus is issued directing the opposite parties to issue formal order appointing the petitioner to be lecturer and consequently is declared that the petitioner is duly appointed Lecturer in the Economics Department and is entitled to the emoluments and privileges of the same. In the circumstances there will be no orders as to costs.