D. K. SETH, J. ( 1 ) BY means of this petition; the petitioner is claiming that he is entitled to be promoted under the 15% quota to Class III post from Class IV post by reason of Circular dated 31. 8. 1982 on account of his fulfilling the eligibility criteria. Admittedly, the petitioner is a graduate. He had completed five years of service in Class IV post. Circular dated 31. 8. 1982 provides that such class IV employee who have continuously served for more than five years will be eligible for promotion under 15% quota which was 10% before the issuance of the said circular. Accordingly after a post had fallen vacant on account of death of one Shri Ram Bihari Pandey on 3. 4. 1991, the petitioner was so promoted to the post of clerk. Such promotion was approved by order dated 26. 2. 1992 contained in Annexure-3 to the writ petition. Son of the deceased Shri rakesh Kumar who is respondent No. 5 in this writ petition was appointed under the dying-in-harness in the post of Chowkidar. This appointment was also approved by the same order dated 26. 2. 1992 contained in Annexure-3. Subsequently by order dated 6. 4. 1992 the district Basic Education Officer, directed the appointment of Shri Rakesh Kumar to the post of clerk while disapproved that of petitioner. It is this order which has since been challenged in this writ petition. ( 2 ) SHRI K. K. Tripathi, learned counsel for the petitioner had pointed out from Annexure-2-A to the writ petition which is a certificate certifying that Rakesh Kumar had passed intermediate education in 1991. Since he is handicapped due to right hand being cut off, he has taken the help of the helper in the examination. Mr. Tripathi contends the respondent No. 5 cannot be appointed on the post of clerk which requires writing. He further contends that the petitioners appointment was cancelled on the ground that the post of clerk was not a promotional post. According to him, the authority had overlooked the Circular dated 31. 8. 1982 and as such the impugned order cannot be sustained. He further contends that the petitioners appointment was cancelled on the ground that the post of clerk was not a promotional post. According to him, the authority had overlooked the Circular dated 31. 8. 1982 and as such the impugned order cannot be sustained. ( 3 ) RESPONDENT No. 5 in his counter-affidavit had stated that though his right hand is cut off but he had picked up writing through left hand which will be apparent from the certificate given to him by the Medical Officer which is Annexure-CA-4 to the counter-affidavit, therefore, it cannot be a disqualification for him. However, Shri Atul Dayal who was given notice by Shri K. K. Tripathi had appeared and submitted that he had no instruction. ( 4 ) LEARNED standing counsel, however, submits that it is not known whether the vacancy was within the 15% quota to be filled up by promotion or not, is a fact which cannot be determined. In view of the impugned order, according to him. 15% quota must have been filled up and the vacancy did not fall within the meaning of 15% quota. ( 5 ) I have heard learned counsel for the parties as above. ( 6 ) THE Committee of Management had filed a Writ Petition No. 17283 of 1992 challenging the impugned order on the ground that respondent No. 5 was incapable of performing the Job of clerk. Virtually the Writ Petition No. 17283 of 1992 was in support of the petitioner in the present case. Therefore, the petitioner did not file any writ petition so long the Committee of management had been pursuing the same. Mr. Tripathl submits that by reason of the conduct of the Committee of Management, he had an apprehension that the Committee of Management will not pursue the Writ Petition No. 17283 of 1992 due to this he had filed this Writ Petition No. 18442 of 1996: Such impression was obtained by the petitioner on account of the fact that only in 1996, the Committee of Management had allowed respondent No. 5 to join the post of clerk, though so long the Job of clerk had been obtained from the petitioner. It is the case of the committee of Management in Writ Petition No. 17283 of 1992 that respondent No. 5 was incapable of performing the job of clerk in the absence of his right hand. It is the case of the committee of Management in Writ Petition No. 17283 of 1992 that respondent No. 5 was incapable of performing the job of clerk in the absence of his right hand. Thus at one point of time, the Committee of Management had supported the petitioners case to the extent of even filing a writ petition to challenge the impugned order. But the subsequent conduct shows that they are not espousing the cause of the petitioner for which the petitioner had come up independent of the Committee of Management to challenge the impugned order. ( 7 ) ADMITTEDLY the petitioner was eligible under order dated 31. 8. 1992 contained in Annexure-1. In the absence of any material as to whether the vacancy is outside the 15% promotional quota, it is not possible to come to any conclusion that it was so outside the scope thereof. On the other hand, giving of promotion to the petitioner and its approval by virtue of order dated 26. 2. 1992 itself shows that the post was within the promotional quota of 15%. Then again had it been a case that it was not within the promotional quota. In that event, it had been indicated in the impugned order dated 6. 4. 1992. On the other hand, in the said order, it has been pointed that there is no provision for promotion from Class IV post to Class III post at all. Therefore, such situation lead us to presume that the vacancy was within promotional quota of 15%. Admittedly, the petitioner is better qualified than respondent No. 5. Inasmuch he is graduate whereas respondent No. 5 is only an Intermediate. The petitioner had fulfilled the eligibility criteria under 15% quota In terms of order dated 31. 8. 1982 and then respondent No. 5 in the absence of his right hand was unable to perform the job of clerk. Therefore, cancellation of the order dated 26. 2. 1992 by the impugned order dated 6. 4. 1992 and the appointment of the respondent No. 5 to the post of clerk appears to be wholly irrational and illegal. ( 8 ) THE statement that respondent had acquired the capacity of writing by left hand is based on the certificate dated 23. 8. 1994 contained in Annexure-CA-4 to the counter-affidavit. The promotion was sought to be given some time in 1992. ( 8 ) THE statement that respondent had acquired the capacity of writing by left hand is based on the certificate dated 23. 8. 1994 contained in Annexure-CA-4 to the counter-affidavit. The promotion was sought to be given some time in 1992. Thus admittedly the respondent No. 5 was incapable of writing even according to his own showing till 23. 8. 1994. Then again certificate contained in annexure 4 also does not indicate that respondent No. 5 was capable of writing with his left hand. The certificate annexed as Annexure-CA-4 to the counter-affidavit is a certificate relating to the health of the respondent No. 5 for the purpose of Government appointment. In the certificate, it was mentioned that after examination, he was found fit except the absence of right hand, The expression used in the said certificate is truncated Rt. hand at wrist. Though it fs stated that he is not unfit for the Job of clerk but nowhere it has been pointed out that the respondent no. 5 was capable of writing through his left hand. Even if the respondent No. 5 is capable of writing by his left hand in 1994, he cannot be considered to be appointed to the post of clerk In 1992 when there was nothing to show that he was capable of writing by his left hand particularly in view of the certificate contained In Annexure-2a to the writ petition which was issued on 5. 11. 1992 whereas the appointment was sought to be made on 26. 2. 1992. ( 9 ) THE question of qualification is relevant to an appointment. Unless a person is qualified, he cannot claim appointment. At the same time, the employer is not supposed to give appointment when a candidate lacks qualification. The question of qualification has its relevance on the date when the appointment Is being made. Subsequent acquisition of qualification would be wholly irrelevant to the question of appointment which ought to have been made earlier. The criteria for consideration is as to whether the candidate possessed the requisite qualification as that point of time. There is no scope for giving any appointment to such unqualified person. The appointment of respondent No. 5 was made under dying-in-harness rules. This rule prescribes that the appointment is to be given according to the qualification of the candidate. The criteria for consideration is as to whether the candidate possessed the requisite qualification as that point of time. There is no scope for giving any appointment to such unqualified person. The appointment of respondent No. 5 was made under dying-in-harness rules. This rule prescribes that the appointment is to be given according to the qualification of the candidate. It is not necessary that the heirs of the deceased should be given the same post in which the deceased had been working. Suitable appointment is proposed under the dying-in-harness rules on the basis of qualification of the candidate. As such, when the appointment of respondent No. 5 was made under the dying-in-harness rules, he was not qualified for being appointed in the post of clerk on account of his disqualification due to his incapacity as mentioned above. Once such an appointment is given, it does not mean that he will be entitled to get the same post if he acquires qualification later on even by reverting a person appointed in the said post. Such appointment does not seem to supersede the rights of others. A person if he is eligible for promotion when a vacancy occurs, his right is equally forceful. Such right cannot be curtailed or extinguished because of the right of the heir of the deceased to obtain an appointment under the dying-in-harness rules. The provisions of the dying-in-harness rule may have the effect of rendering the application of articles 14 and 16 inoperative for a particular purpose. It does not have overriding effect to deny the legal right of some other to claim promotion if he is otherwise eligible against the post that fell vacant by reason of the death of the incumbent though his heir may be sought to be appointed. Admittedly at the point of appointment of respondent No. 5, he was unfit for the post of clerk which fact does not appear to have been disputed except to the extent that he had acquired the capacity to write by his left hand subsequently. This subsequent acquisition of qualification would not render the appointment of the petitioner invalid so as to revert him to accommodate the respondent No. 5. ( 10 ) THUS, it appears that the impugned order had been issued without any application of mind and for purposes extraneous, as such is liable to be quashed. This subsequent acquisition of qualification would not render the appointment of the petitioner invalid so as to revert him to accommodate the respondent No. 5. ( 10 ) THUS, it appears that the impugned order had been issued without any application of mind and for purposes extraneous, as such is liable to be quashed. ( 11 ) IN the result, the writ petition succeeds and the Impugned order dated 6. 4. 1992 contained in annexure-4 to the writ petition is hereby quashed. Let a writ of certiorari do issue. The petitioner is entitled to continue as clerk pursuant to the approval granted by order dated 26. 2. 1992 and is entitled to all consequential benefits of such service including pay and other benefits. Let a declaration to the above extent do issue. Let a writ of mandamus do issue accordingly. ( 12 ) THERE will be however, no order as to cost. .