JUDGMENT : R. A. Sharma, J. 1. Ram Lakhan, petitioner no. 2 and respondent no. 3 were appointed as C.T. Grade Teacher in a High School known as Captain Ummed Singh Uchchattar Madhyamik Vidyalaya, Kalhore, District Mainpuri (hereinafter referred to as the school). In order to establish a Secondary Education Commission and Secondary Education Selection Board for selection of Teachers in the institution recognised under Intermediate Education Act, 1921, the Government of Uttar Pradesh had promulgated an ordinance known as U. P. Secondary Education Services Commission and Selection Board Ordinance of 1981. As the establishment of Commission and Selection Board was likely to take some time and there were number of vacancies in the posts of teachers in various institutions, Government of U. P. Issued U. P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as Removal of Difficulties Order). 2. The school was a recognised Institution under Intermediate Education Act. There were vacancies in the L.T. grade in the school and as such the Management under paragraph 4 of the Removal of Difficulties Order promoted the petitioner no. 2 and the respondent no. 3 to L.T. grade purely on adhoc basis. Adhoc appointment of the petitioner no. 2 and respondent no 3 were approved by the District Inspector of Schools, Mainpuri vide order dated 26-3-X6. The U. P. Secondary Education Services Commission and Selection Board Ordinance was replaced by Act known as U. P. Secondary Education Services Commission and Selection Board Act, 1981 (hereinafter referred to as the Act). Section 33 of the Act confers power on the State Government to issue Removal of Difficulties Order to meet the urgent situation. The system for appointment of adhoc teachers as such continued. 3. In 1985 section 33-A was added to the Act for the purpose of regularising the appointment of ad hoc teachers directly appointed against substantive vacancies in accordance with the Removal of Difficulties Order. Chapter IV-A was also added for absorption of reserve pool teachers. Reserved Pool Teachers are the teachers who had been appointed in any institution by the management or inspector under U. P. Payment of Salaries Act during the strike of the teachers. By this amendment section 21-B was added providing for absorption of teachers against substantive vacancies which may occur in any institution recognised under the intermediate Education Act. 4. Reserved Pool Teachers are the teachers who had been appointed in any institution by the management or inspector under U. P. Payment of Salaries Act during the strike of the teachers. By this amendment section 21-B was added providing for absorption of teachers against substantive vacancies which may occur in any institution recognised under the intermediate Education Act. 4. Sri Mool Chand, respondent No. 2 was one of the reserved pool teachers and was as such has to be absorbed against the substantive vacancy in the L.T. grade. The District Inspector of Schools (hereinafter referred to as the D.I.O.S.) issued an order dated 12-6-86 to the Manager of the school for appointment of SRI Mool Chand, respondent no. 2 in the substantive vacancy of the L.T. grade and further directed that any ad hoc appointment made in the L.T. grade shall come to an end automatically. Committee of Management of the School and Sri Ram Lakhan, petitioner no. 2 have filed this writ petition challenging aforesaid order dated 12-6-86 passed by the D.I.O.S. and further prayed for writ of mandamus so as to restrain the respondents from interfering in the functioning of Sri Ram Lakhan, petitioner no. 2 and the respondent" no. 3 as L.T. grade teacher in the school. 5. The petitioners have challenged the aforesaid order before us on the following grounds :- (i) petitioner no. 2 and the respondent no. 3 were promoted on adhoc basis against the substantive vacancies in 1981 and were approved by the D.I.O.S. in 1983 as such their services stand regularised under section 33-A of the Act hence against the vacancies of petitioner no. 2 and the respondent no. 3, D.I.O S. Has no jurisdiction to appoint Sri Mool Chand, respondent no. 2 even though he is a reserved pool teacher. (ii) Reserved pool teacher cannot be appointed against a vacancy reserved for promotion. (iii) Petitioner no. 2 and the respondent no. 3 are entitled to continue as L.T. grade teacher till the promotion is made and approved by the Secondary Education Commission. 6. All the contentions of the petitioners have no force. So far as the first contention about regularisation of petitioner no. 2 and the responden no. 3 is concerned, it may be stated that section 33-A of the Act provid for regularisation of directly appointed teachers on ad hoc basis and the services of the promotees cannot be regularised. 6. All the contentions of the petitioners have no force. So far as the first contention about regularisation of petitioner no. 2 and the responden no. 3 is concerned, it may be stated that section 33-A of the Act provid for regularisation of directly appointed teachers on ad hoc basis and the services of the promotees cannot be regularised. Relevant portion of section 33-A of the Act is quoted below :- "33-A (1) Every teacher directly appointed before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Board (Amendment) Ordinance, 1985 on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 as amended from time to time, who possesses the qualifications prescribed under or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921, shall with effect from the date of such commencement be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institutior from the date of such appointment upto the date of such commencement." The petitioner no. 2 and the respondent no. 3 were directly appointed but they were promoted on ad hoc basis under paragraph 4 of the Removal of Difficulties Order. For promotees there is no provision for regularisation of their services. Under section 33-A of the Act the services of only those ad hoc teachers, who were directly appointed, can be regularised. It is clear from the language of section 33-A itself as the section opens with the phrase "every teacher directly appointed." A Division Bench of this court in Chandrika Prasad Yadava v. State of U. P., 1986 Education Cases 223 had laid down that services of the promotees are not liable to be regularised under section 33-A of the Act. Relevant extract from the aforesaid judgment is quoted below :- "In the first place, the benefit of section 33-A is available only to those teachers who were appointed on ad hoc basis directly and not to the teachers who were appointed on ad hoc basis under the Removal of Difficulties Order of 1981 by way of promotion." 7. Relevant extract from the aforesaid judgment is quoted below :- "In the first place, the benefit of section 33-A is available only to those teachers who were appointed on ad hoc basis directly and not to the teachers who were appointed on ad hoc basis under the Removal of Difficulties Order of 1981 by way of promotion." 7. In the aforesaid case the validity of section 33-A of the Act was also challenged on the ground that it is hit by Article 14 of the Constitution inasmuch as it confers the benefit of regularisation only on the feathers, who were directly appointed on ad hoc basis and the ad hoc promotees as such has been discriminated against. This contention was also repelled by this Court. Relevant extract from judgment is quoted below :- "Ad hoc teachers who were appointed directly under the Removal of Difficulties Order of 1981 issued under U. P. Act no, 5 of 1982 and the ordinance which was replaced by the said Act constitute a class by themselves and cannot be legitimately equated with the ad hoc promotees. IN the case of Chandra Datt Patni v. State of U. P. Reported in 1985 UP LB EC 212, a Division Bench had occasion to consider the nature of ad hoc appointments made under the aforesaid Removal of Difficulties. In that connection several Government Orders issued by the State Government providing for regularisation of ad hoc appointments made under various services of the State were examined. Each of those Government Orders which provided for regularisation of ad hoc emplovees was made applicable only to those who were directly appointed. The benefit of regularisation was not extended to ad hoc promotees. IN doing this what had weighed with the Government was that persons who were directly appointed on ad hoc basis to various services, if not retained in service after having worked continuously for several years, would find it hard to secure jobs elsewhere as with the passage of time most of them must have become over age for other services. They would hence immediately face unemployment and all the concomitants flowing therefrom. They would hence immediately face unemployment and all the concomitants flowing therefrom. The ad hoc promotees, on the other hand, would on their ad hoc employment ceasing continue to belong to the service, only they would revert to their substantive lower post a situation which is materially different and distinct from that implied in the total loss of employment." 8. A Division Bench of this court again in Kumari Nishi Bhargava v. Deputy Director of Education, Agra, 1987 Education Cases 131, has interpreted section 33-A of the Act and laid down that services of directly appointed teachers on ad hoc basis are liable to be regularised. Relevant extract from judgment is quoted below :- "In 1985 section 33-A was added to the Act regularising appointment of a teacher directly appointed before the commencement of Uttar Pradesh Secondary Education Service Commission and Selection Board (Amendment) Ordinance, 1985 on ad hoc basis against substantive vacancy in accordance with para 2 of Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) Order, 1981." As the petitioner was ad hoc promotee and was not directly recruited on ad hoc basis, his services cannot be regularised under section 33-A of the Act. Petitioner has, however, relied on para 12 of the judgment of Kumari Nishi Bhargava which is quoted below :- "Ad hoc appointments have also been made by promotion. Such appointments, if made in substantive vacancies against 40% quota reserved for promotion satisfying other requirements also stand regularised." 9. We have already extracted the relevant portion of the judgment pertaining to the effect of section 33-A in Kumari Nishi Bhargava's case whereby it was laid down that the services of directly appointed teachers is liable to be regularised. In para 15 of the said judgment, Division Bench has laid down 12 conclusions. In all these conclusions, the court has referred to the ad hoc appointees and not to ad hoc promotees. In none of this conclusions the court has laid down for regularisation of ad hoc promotees and has always referred to the ad hoc appointees only. 10. Section 33-A is very clear and refers to a teacher directly appointed. In all these conclusions, the court has referred to the ad hoc appointees and not to ad hoc promotees. In none of this conclusions the court has laid down for regularisation of ad hoc promotees and has always referred to the ad hoc appointees only. 10. Section 33-A is very clear and refers to a teacher directly appointed. In the case of Chandrika Prasad Yadava this court categorically laid down that promotees cannot be regularised and even in Kumari Nishi Bhargava's case the same position has been affirmed In para 12 of the judgment, however, general observation had been made about regularisation of the promotees. SECTION 33-A of the Act does not provide for said regularisation of promotees and no other provisions of law has been placed before us by the learned counsel for the petitioner which provide for regularisation of promotees. The observation in para 12 regarding the regularisation of services of promotees under section 33-A of the Act appears to have been made on account of inadvertence or oversight and this part of the judgment in para 12 can be treated as judgment per incuriam. Supreme Court in the case of Mamleshwar Prasad v. Kanahaiya Lal, AIR 1975 SC 907 considered this aspect and the relevant extract from the judgment of Supreme Court is quoted below :- "Certainly of the law, consistency of rulings and comity of courts all flowering from the same principal-converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, whereby obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the away of binding precedents." The observation made by this court in para 12 of Kumari Nishi Bhargava's case as such cannot have the binding effect. 11. Regarding the second contention, it is true a reserved pool teacher cannot be appointed against the vacancy which is required to be filled by promotion. Sub-section (3) of section 21-B of the Act provides for appointment of a reserved pool teacher against a vacancy which is to be filled in by direct recruitment. 11. Regarding the second contention, it is true a reserved pool teacher cannot be appointed against the vacancy which is required to be filled by promotion. Sub-section (3) of section 21-B of the Act provides for appointment of a reserved pool teacher against a vacancy which is to be filled in by direct recruitment. It may, however be noticed that Regulation 5 (2) of Chapter II framed under Intermediate Education Act provides that 40 percent of the total number of sanctioned post in the Lecturer grade or in the L. T. Grade shall be filled by promotion subject to the availability and eligibility of teachers for promotion. Clause (2) of Regulation 5 of Chapter II is quoted below :- "(2) (a) Forty per cent of the total number of the sanctioned posts in Lecturer's grade or in the L. T. Grade shall only be filled by promotion from amongst the teachers working in the institution in the L. T. And C. T. Grades respectively and promotions shall be made subject to availability and eligibility of such teachers for promotion." (emphasis supplied). 12. In view of this aforesaid position 40 per cent seates are required to be filled by promotion only if eligible teachers are available for promotion. Regulation 6 of Chapter II provides that for the purpose of promotion of a C. T. Grade teacher to L. T. Grade, a teacher must have a minimum of five years continuous substantive service to his credit on the date of occurrence of the vacancy. Regulation 6 is quoted below :- "6 (1) Where any vacancy in the lecturer's grade 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. Grades 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." Five years continuous service in C. T. Grade as such is a condition of eligibility for promotion to the post of L. T. Grade from C. T. Grade. Petitioner no. 2 and respondent no. Petitioner no. 2 and respondent no. 3 were appointed in C. T. Grade in the school in 1979 and were promoted in the post of L. T. Grade in 1981. At the time of promotion they did not have five years continuous substantive service in the C. T. Grade and as such were not eligible for being promoted to L. T. Grade. No other teacher in the school of C. T. Grade was eligible for being promoted to L. T. Grade. When eligible candidates for promotion are not available, the post cannot remain vacant and appointment had to be made by direct recruitment. Filling in 40 per cent post of promotion by clause (2) of Regulation 5 has been made subject to the availability and eligibility of the teachers for promotion. As in the school there is no eligible teacher for being promoted to L. T. Grade, the post has to be filled in by direct recruitment and in view of this position reserved pool teacher can be absorbed/appointed on the post of L. T. Grade against which the petitioner no 2 and the respondent no. 3 were earlier appointed on ad hoc basis. Faced with the aforesaid situation, it has been contended on behalf of the petitioners that although petitioner no. 2 and the respondent no. 3 were not eligible at the time when they were promoted, in 1981 but as they have continued to work after promotion in 1981, they have become eligible. In this connection it may be mentioned that Regulation 6 of Chapter II framed under Intermediate Education Act provides that teacher concerned should have a minimum five years continuous service on the date of occurrence of vacancy and not on the date of appointment. The vacancy in L. T. Grade had occurred in 1980-81 and petitioner no. 2 and the respondent no 3 were promoted in 1981 on the date on which the vacancy occurred as well as on the date on which they were promoted to L. T. Grade, they did not have five years requisite service to their credit and as such were not eligible. 2 and the respondent no 3 were promoted in 1981 on the date on which the vacancy occurred as well as on the date on which they were promoted to L. T. Grade, they did not have five years requisite service to their credit and as such were not eligible. A Division Bench of this court in the case of Committee of Management v. Additional Director of Education, reported in 1981 UPLBEC 50 has laid down that relevant date is the date of occurrence of vacancy and if the candidate did not have five years continuous service on the date of occurrence of vacancy, he is not eligible and as such he cannot be promoted. Petitioner no. 2 and respondent no. 3 are not eligible for promotion (DIOS was fully justified in passing the impugned order appointing respondent no. 2 Sri Mool Chand against the vacancy in L. T. Grade on account of the appointment of respondent no. 2 services of ad hoc promotees in the L. T. Grade comes to an end and they have to be reverted to the original post of C. T. Grade). The petitioners have further contended that for ad hoc appointment under removal of difficulties order the five years continuous service in C. T. Grade is not required. Presuming it is so, it will not help the petitioner because all the ad hoc appointees are not liable to be regularised under Section 33-A unless they satisfied the conditions precedent laid down therein. One of the conditions precedent for regularisation as laid down by the aforesaid section is that a teacher must possess the requisite qualifications prescribed under or is exempted from such qualification. Regulation 6 of Chapter II of the regulations under the Intermediate Education Act being statutory force having been framed under the said Act and these regulations are to be treated as part of the Act. The petitioner does not have one of the requisite qualifications prescribed under regulation 6 namely minimum of five years continuous substantive service on the date of occurrence of the vacancy. As mentioned earlier vacancy has occurred before 1979-80 and petitioner was not having the said minimum qualification for appointment. Petitioner as mentioned above was also not having the requisite qualification on the date of his ad hoc appointment. Hence he cannot be regularised. 13. As mentioned earlier vacancy has occurred before 1979-80 and petitioner was not having the said minimum qualification for appointment. Petitioner as mentioned above was also not having the requisite qualification on the date of his ad hoc appointment. Hence he cannot be regularised. 13. SO far as the third contention of the petitioners are concerned it is also liable to be rejected. Neither petitioner no. 2 nor respondent no. 3 were eligible for being promoted to L. T. Grade. In fact no other teacher of the school in C. T. Grade was eligible for promotion to L. T. Grade question of filling in these posts of L. T. Grade by promotion as such does not arise. These two posts against which petitioner no. 2 and respondent no. 3 are working in L. T. Grade have to be filled in by direct appointment. Posts which are to be filled in by direct appointment can be filled by reserved pool teacher also. As the DIOS by the impugned order has appointed a reserved pool teacher (Sri Mool Chand, respondent no. 2, the ad hoc promotees like petitioner no. 2 cannot continue any more in L. T. Grade. 14. In this connection it may be mentioned that the name of the petitioner no. 2 for promotion to L. T. Grade was not approved and he was not selected by the commission on account of the fact that he was not eligible for being promoted to L. T. Grade as he was not having five years continuous service in the C. T. Grade. It further appears that the Manager of the school made some representation to the commission for reconsideration of the earlier order of the commission regarding petitioner no. 2. This representation of the management was rejected by the commission vide order dated 27-2-1986 and the commission further directed to take steps for filling the posts of L. T. Grade by direct recruitment in accordance with the Act. This order of the commission has been filed by respondent no. 2 as Annexure III to his counter- affidavit. The aforesaid order of the commission for making appointment by direct recruitment has not been challenged in this court and in fact the petitioner has not even mentioned this order in his writ petition. These posts of L. T. Grade against which petitioner no. 2 and respondent no. 2 as Annexure III to his counter- affidavit. The aforesaid order of the commission for making appointment by direct recruitment has not been challenged in this court and in fact the petitioner has not even mentioned this order in his writ petition. These posts of L. T. Grade against which petitioner no. 2 and respondent no. 3 are working on ad hoc basis are to be filled in by direct recruitment and against these posts a reserved pool teacher can be absorbed in accordance with Section 21-B of the Act. Learned counsel for respondent no. 2 has argued with same force that petitioners are guilty of concealment of relevant facts inasmuch as they did not disclose in their writ petition that the candidature of petitioner no. 2 for promotion to L. T. Grade was rejected by the commission and vide order dated 27-2-1986, the commission has directed for filling in these posts of L. T. Grade by direct recruitment. It was further contended that aforesaid orders of commission were known to the petitioners when the writ petition was filed in July 1986. On this basis the learned counsel has argued that the writ petition should be dismissed with special costs. As we are dismissing the writ petition on merit it is not necessary to go into this question and we are not inclined to award the special costs while dismissing the writ petition. 15. The writ petition is accordingly dismissed with costs.