JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri B.N. Singh, learned Counsel for the petitioner, Sri Vashistha Tiwari for respondents No. 3 and 5, Sri A.K. Yadav for respondent No. 6 and learned Standing Counsel. 2. By this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order of appointment of respondent No. 5 on the post of Lecturer (Hindi). A mandamus has also been sought commanding respondents No. 2, 3 and 4 to promote the petitioner on the post of Lecturer (Hindi) with effect from 1st July, 1997. 3. Brief facts necessary for deciding the writ petition are; Inter College Dandia Mai is a recognised institution under the provisions of the UP. Intermediate Education Act, 1921. After enforcement of the U.P. Secondary Education Services Selection Board Act, 1982 the institution came under the purview of the said 1982 Act. The petitioner was appointed as L.T. Grade Teacher with effect from 8th July, 1987. One Satpal Singh Yadav who was working as Lecturer (Hindi) retired on 30th June, 1996 causing a substantive vacancy on the post of Lecturer (Hindi). Petitioner’s case in the writ petition is that the Committee of Management vide letter dated 7th February, 1996 allegedly sent a requisition for the post of Lecturer (Hindi). The petitioner’s case further is that he was permitted to perform the duties of Lecturer (Hindi) after retirement of Satpal Singh Yadav. His further case is that Satpal Singh Yadav being a lecturer appointed by promotion, the post of Lecturer (Hindi), which fell vacant due to his retirement, was to be filled up by promotion of L.T. Grade Teacher. The U.P. Secondary Education Services Commission vide its letter dated 3rd January, 1998 sent a panel of selected candidate, i.e., the name of respondent No. 5 for appointment as Lecturer (Hindi). In pursuance of the selection made by the Commission of respondent No. 5, the Committee of Management issued appointment letter and respondent No. 5 submitted his joining on 7th February, 1998. The petitioner after selection of respondent No. 5 by the Commission on the post of Lecturer (Hindi) filed this writ petition praying for quashing the selection of respondent No. 5. 4. Counter and rejoinder affidavits have been exchanges between the parties. The petitioner after selection of respondent No. 5 by the Commission on the post of Lecturer (Hindi) filed this writ petition praying for quashing the selection of respondent No. 5. 4. Counter and rejoinder affidavits have been exchanges between the parties. The petitioner’s case in the writ petition is that petitioner having worked as L.T. Grade Teacher and having completed five years of service, he was entitled for promotion on the post of Lecturer (Hindi). The petitioner made requests for promotion on the post of Lecturer (Hindi). Petitioner’s case further is that Satpal Singh Yadav having been promoted as Lecturer (Hindi), after his retirement the post will fall under promotion quota. Further the case of the petitioner is that requisition alleged to be sent by the Committee of Management for the post of Lecturer (Hindi) was never sent and the selection of respondent No. 5 is illegal. The Committee of Management, District Inspector of Schools as well as the selected candidate have filed their counter-affidavits. The case of the respondents in the counter-affidavit is that the post of Lecturer (Hindi) did not fall within the promotion quota there being four posts sanctioned and three posts, namely, Lecturer (Economics), Lecturer (Civics) and Lecturer (Hindi) having been filled through promotion. The case of the respondents is that after the post of Lecturer (Hindi) fell vacant, two posts having already been filed through promotion, the post in question was to be filled up by direct recruitment for which requisition was sent by the Management and Commission has rightly made selection of respondent No. 1. It has further been submitted that the petitioner was not qualified on the day of occurrence of vacancy since he was simply B.A., B.T.C. on that date. It has further been pleaded that requisition for the post of Lecturer (Hindi) was sent on 7th February, 1996 and thereafter selection has been made. 5. Sri B.N. Singh, learned Counsel for the petitioner, in support of the writ petition raised following submissions : (i) The petitioner though not qualified on 1st July, 2006 he having passed postgraduate in December, 1996, he was fully qualified on the date when respondent No. 5 was appointed, i.e., on 7th February, 1998. He submits that qualification has to be looked into on the date when post is filled up and on that date petitioner being qualified, he is fully eligible for promotion. He submits that qualification has to be looked into on the date when post is filled up and on that date petitioner being qualified, he is fully eligible for promotion. Reliance has been placed on two judgments of this Court, namely, 2000(3) E.S.C. 2060; Harish Chand v. Joint Director of Education and others and 2003(2) ESC 755; Nand Kishore v. Joint Director of Education and others. (ii) The post of Lecturer (Hindi) was within promotion quota since Satpal Singh Yadav who retired was holding the post as promoted lecturer. (iii) The Committee of Management has not sent any requisition for the post of Lecturer (Hindi) nor the post was advertised by the Commission, hence the selection made by the Commission is illegal. 6. Sri Vashistha Tiwari, learned Counsel appearing for respondents No. 3 and 5, refuting the submissions of Counsel for the petitioner, contended that the post which fell vacant was not under promotion quota and was to be directly filled up there being two lecturers already functioning through promotion. It is further contended that petitioner was not eligible on the date of occurrence of vacancy i.e., on first day of the year of recruitment he having passed postgraduate only in December, 1997. It is further contended that requisition was very much sent on 7th February, 1996 and thereafter, the selection has been made of respondent No. 5 by the Commission. Respondent No. 5 belongs to Scheduled Caste category and has been selected and appointed. Learned Counsel for respondents have placed reliance on the judgment of the Apex Court in (2006)3 S.C.C. 97, Puran Das v. Union of India and others and judgment of this Court in 2007(1) ADJ 667, Ram Prabhav Singh v. District Inspector of Schools, Deoria and others. 7. I have considered the submissions raised by Counsel for the parties and perused the record. 8. The first question, which comes for consideration is as to whether the petitioner was eligible for promotion on the post of Lecturer (Hindi), which fell vacant on 30th June, 1996. The submission of Counsel for the petitioner is that the eligibility for promotion is to be looked into on the date when the post is filled up. 9. 8. The first question, which comes for consideration is as to whether the petitioner was eligible for promotion on the post of Lecturer (Hindi), which fell vacant on 30th June, 1996. The submission of Counsel for the petitioner is that the eligibility for promotion is to be looked into on the date when the post is filled up. 9. Under Section 35 of the U.P. Secondary Education Services Selection Board Act, 1982 rules have been framed, namely, U.P. Secondary Education Services Commission Rules, 1995 which came into force with effect from 5th August, 1995. The post of Lecturer (Hindi) fell vacant on 30th June, 1996 due to retirement of Satpal Singh Yadav. The 1995 Rules were in operation at the relevant time, hence it is necessary to look into the provisions of the said Rules. Rule 14 of 1995 Rules provides procedure for recruitment by promotion. Rule 14(1) of 1995 Rules are extracted below : “14. Procedure for recruit by promotionment.—(1) Where any vacancy is to be filled by promotion all Teachers working in Trained Graduates (L.T.) Grade or Certificate of Teaching (C.T.) Grade, if any, who possess the qualifications, prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the Lecturers Grade or the Trained Graduates (L.T.) Grade, as the case may be, without having applied for the same.” 10. The key words in Rule 14 are “teachers who possess the qualifications prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered”. Thus it has to be looked into what is the first date of recruitment to fix the eligibility of the candidates. The year of recruitment has been defined in Section 2(I) of the U.P. Secondary Education Services Selection Board Act, 1982, which is extracted below: “2(I). ‘Year of recruitment’ means a period of twelve months commencing from first day of July of a calendar year”. 11. The 1995 Rules provides procedure for intimation of vacancy. The question to be answered is as to what shall be the first day of the year with regard to vacancy which came into existence on 30th June, 1996. There is no dispute that year of recruitment is period of 12 months beginning from 1st July. 11. The 1995 Rules provides procedure for intimation of vacancy. The question to be answered is as to what shall be the first day of the year with regard to vacancy which came into existence on 30th June, 1996. There is no dispute that year of recruitment is period of 12 months beginning from 1st July. For answering the above question Rule 11 of 1995 Rules, which provides for determination and notification of vacancy has to be looked into. Rule 11 of 1995 Rules is extracted below : “11. Determination and notification of vacancies.—(1) The Management shall determine the number of vacancies in accordance with sub-section (1) of Section 15 of the Act and notify them through the Inspector, to the Commission in the manner hereinafter provided. (2) The statement of vacancies for each category of post to be filled in by direct recruitment or by promotion, including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent separately in quadruplicate in the proforma given in Appendix “A” by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of trained graduates (LT) grade. The consolidate statement so prepared shall, alongwith the copies of statement received from the Management, be sent by the Inspector to the Commission by July 31 with a copy thereof to the Deputy Director : Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Commission in respect of any particular year of recruitment : Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well; as the vacancies that are likely to arise on June 30, 1995 the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by June 15, 1995 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Commission by June 30, 1995." 12. Rule 11 (2) of 1995 Rules provides that statement of vacancies of each category to be filled in by direct recruitment or by promotion including the vacancies that are likely to arise due to retirement on the last date of the year of recruitment shall be sent separately by 15th July of the year of recruitment. Thus in the year of recruitment which is from 1st July to 30th June of the next year all vacancies falling has to be intimated by 15th July. The rule further envisages that vacancies, which are falling on the last date of the year of recruitment are also to be intimated. For example a vacancy, which is to fall vacant on 30th June, 1996, is required to be intimated by 15th July, 1995. The year of recruitment in the said case shall be from 1st July, 1995 to 30th June, 1996. Thus above Rule 11 sub-rule (2) clearly indicates that for a vacancy, which is falling on 30th June, the same is required to be intimated by 15th July of the previous year. Thus in the present case the post which was falling vacant on 30th June, 1996 was required to be intimated by 15th July, 1995. In the present case, thus, the year of recruitment shall be from 1st July, 1995 to 30th June, 1996. Thus the qualification of the petitioner has to be looked into on the first day of the year of recruitment. 13. The vacancy in question arose on 1st July, 1996. The 1995 Rules were enforced vide notification dated 8th May, 1995, which was published in the U.P. Gazette on 5th August, 1995. On the date when vacancy in question arose the 1995 Rules were already enforced. The eligibility for promotion on the post of Lecturer (Hindi) was thus to be looked into according to the 1995 Rules. Prior to 1995 Rules, U.P. Secondary Education Services Commission Rules, 1983 were holding the field according to which all teachers working in L.T. Grade who possess the minimum qualification on the date of occurrence of vacancy were required to be considered for promotion to the post of lecturer. Considering the case of the petitioner according to Rule 14 of the 1995 Rules, the petitioner does not fulfil the eligibility on the first day of the year of recruitment. Considering the case of the petitioner according to Rule 14 of the 1995 Rules, the petitioner does not fulfil the eligibility on the first day of the year of recruitment. According to second proviso to Rule 11(2), the vacancy occurring by 30th June, 1995 were required to be communicated by 15th June, 1995. Thus for a vacancy came into existence due to retirement on 30th June, 1995, the same was required to be intimated by 15th June, 1995. All vacancies occurring up to the end of academic year are thus required to be intimated by 15th July of the previous year, the purpose of which is that during the period of July to June all process of selection is completed so that the panel is ready for being sent to the District Inspector of Schools for appointment in the College immediately on occurrence of vacancy to avoid any disruption of study. Thus there is rational object for providing eligibility on the first day of the year of recruitment. Thus it is held that petitioner was not eligible on the first day of the recruitment he having not possessed the degree of postgraduation on 1st July, 1995. Even on first July, 1996 when the post fell vacant, the petitioner did not have postgraduation in Hindi and thus it is held that petitioner was not eligible for promotion on the post of Lecturer (Hindi). It is not the case of the petitioner that there were any other persons eligible for promotion for the post of Lecturer (Hindi). According to the proviso to Rule 10 of the 1995 Rules if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the post may be filled in by direct recruitment. 14. Learned Counsel for the petitioner next contended that post of Lecturer (Hindi) was within promotion quota and was required to be filled up by promotion only. The respondents in their counter-affidavit have refuted the submission of Counsel for the petitioner that the post which fell vacant due to retirement of Satpal Singh Yadav was under promotion quota. It is contended that there was four sanctioned posts out of which three were filled in through promotion including the post of Lecturer (Hindi) and there were two lecturers already working on promotion, hence the promotion quota was filled up. It is contended that there was four sanctioned posts out of which three were filled in through promotion including the post of Lecturer (Hindi) and there were two lecturers already working on promotion, hence the promotion quota was filled up. As noted above, the petitioner being not eligible for promotion, it is not necessary to consider the submission of the petitioner that the post of Lecturer (Hindi) was not under promotion quota. 15. The next submission of the petitioner is that no requisition was sent by the Management to the District Inspector of Schools. The petitioner himself has annexed letter dated 7th February, 1996 as Annexure-1 to the writ petition, which is a letter sent by the Management to the District Inspector of Schools sending requisition, which is said to be received by the office of District Inspector of Schools on 20th February, 1996. The Committee of Management in its counter-affidavit [paragraph 3(ii))] as well as in paragraph 14 has categorically stated that requisition was sent by the Committee of Management for the post of Lecturer (Hindi). The District Inspector of Schools in his counter-affidavit has also accepted the sending of requisition. Thus the case of the petitioner that no requisition was sent for the post of Lecturer (Hindi) cannot be accepted. 16. Learned Counsel for the petitioner has also emphasised that selection of respondent No. 5 was illegal since the vacancy in question was never advertised. In the entire writ petition there is no pleading that vacancy of Lecturer (Hindi) was not advertised by the Commission. Although learned Counsel for the petitioner sought to argue that respondent No. 5 was selected in pursuance of some notification of 1995 or 1996 but there are no material in support of the said pleading. The Commission has recommended the name of respondent No. 5 for appointment and the letter of the Secretary of the Commission dated 3.2.1998 has been filed as Annexure-13 to the writ petition. The name of the respondent No. 5 was sent in accordance with Rule 12(6) of 1995 Rules. The panel having been sent in accordance with 1995 Rules it shall be presumed that all procedure for selection was duly followed. 17. Now comes the judgments relied by Counsel for the petitioner. Learned Counsel for the petitioner has placed much reliance on two judgments, namely, Harish Chand’s case (supra) and Nand Kishore’s case (supra). The panel having been sent in accordance with 1995 Rules it shall be presumed that all procedure for selection was duly followed. 17. Now comes the judgments relied by Counsel for the petitioner. Learned Counsel for the petitioner has placed much reliance on two judgments, namely, Harish Chand’s case (supra) and Nand Kishore’s case (supra). In Harish Chand’s case (supra) the vacancy occurred on 30th June, 1991 due to retirement of incumbent. The 1995 Rules were enforced by which criteria from date of occurrence of vacancy was changed by Rule 9 as first day of the year of recruitment. The learned Single Judge in the said case held that it is open for the Legislature to change the criteria of eligibility. The learned Single Judge in the said case, however, held that right of a L.T. Grade teacher to be considered for promotion to lecturer grade under the Act and the Rules arises only after a vacancy of permanent nature is notified under Section 10 of the Act to be filled up by promotion and until it is so done the right of promotion in relation to the vacancy remains an indeterminate right. Following was laid down in paragraph 10 of the said judgment : “10. Conclusion deducible from the above discussion may be summed up as under : (a) Right of a L.T. grade teacher to be considered for permanent promotion to lecturer grade under the Act and the Rules arises only after a vacancy of permanent nature is notified under Section 10 of the Act to be filled up by promotion and until it is so done the right to promotion in relation to the vacancy remains an indeterminate right as distinguished from a vested right. (b) Eligibility conditions and cut-off-date for qualification can be altered at any time by the Legislature or the rule making authority but such alternation will not affect a vested right unless the amendment is, expressly or by necessary implication given a retrospective operation. (c) Rule 14 of the new Rules will not become retrospective merely because it is applied to vacancies existing as on 8.5.1995. (c) Rule 14 of the new Rules will not become retrospective merely because it is applied to vacancies existing as on 8.5.1995. (d) The cut-off-date for qualification and experience for promotion in a vacancy existing as on 8.5.1995 will be ‘the first day of the year of recruitment’ except where the vacancy has already been notified to be filled by promotion in which event the cut-off-date will be ‘the date of occurrence of vacancy’. (e) Promotion to an anticipated vacancy even if already notified for recruitment by promotion will be governed by the new Rules.” 18. In Harish Chand’s case (supra) the vacancy of Lecturer (English) arose on 30th June, 1991. The vacancy could neither be notified by the Commission nor any decision was taken for filling the post by promotion till the 1995 Rules were enforced. Learned Single Judge took the view that the eligibility criterion as contained in 1983 Rules, i.e., ‘on the date of occurrence of vacancy’ was changed as ‘on the first day of the year of recruitment’ by 1995 Rules and the vacancy being not notified by that time, the respondents were obliged to consider the eligibility according to 1995 Rules. When the 1995 Rules came into existence the vacancy in question was continuing. In the above judgment this Court directed the authorities to consider the question of eligibility according to the 1995 Rules, i.e., “first day of the year of recruitment’. The present is a case where vacancy arose on 30th June, 1996 due to retirement, i.e., subsequent to enforcement of the Rules. In the present case the eligibility of the petitioner was required to be considered in accordance with the 1995 Rules and as per such consideration, the petitioner is found not eligible for promotion. The judgment in Harish Chand’s case (supra) was on its own facts where the petitioner got benefit of change of eligibility by enforcement of the 1995 Rules. In the said case no such proposition has been laid down that eligibility is not to be considered in accordance with ‘first day of the year of recruitment even in cases where vacancy arose after enforcement of 1995 Rules. Thus the said case does not help the petitioner in any manner. 19. In Nand Kishore’s case (supra), the learned Single Judge took the view that the date on which proposal for promotion was being considered is the relevant year of recruitment. Thus the said case does not help the petitioner in any manner. 19. In Nand Kishore’s case (supra), the learned Single Judge took the view that the date on which proposal for promotion was being considered is the relevant year of recruitment. A Division Bench of this Court had occasion to consider the relevant date of eligibility for considering promotion on the post of lecturer under the 1982 Act and the rules framed thereunder in 2004 A.L.J. 3711, Subhash Prasad v. Regional Selection Committee, Gorakhpur and others. In the case before the Division Bench the vacancy came into existence on 1st July, 1997, the Management send the resolution of promotion on 24.5.1998 in favour of Subhash Prasad. It was contended before the Division Bench that though appellant was not eligible on 1.7.1997 but was eligible on the date of consideration of promotion by Management, i.e., 24.5.1998. The Division Bench repelled the contention and held that first day of the year of recruitment has to be taken on 1.7.1997. Following was laid down in paragraph 27 of the said judgment : 20. In the case reported in 2005(4) ESC 2327 (All), Brahm Dutt Tripathi v. State of U.P. and others, I had occasion to consider the same question and following the Division Bench in Subhash Prasad’s case (supra) following was laid down in paragraph 27 : “27. In view of the foregoing discussions, it is clear that petitioner was not eligible for promotion either on the date of occurrence of vacancy or on the first day of year of recruitment, hence he is not entitled for any direction to the respondent to consider the petitioner for promotion on the post of Lecturer (Commerce) which fell vacant on 30.6.1995.” 21. In view of clear pronouncement of Division Bench in Subhash Prasad’s case (supra), the view taken in Nand Kishore’s case (supra) cannot be preferred. Following the Division Bench, the relevant date for determining the eligibility of the petitioner for promotion is the date of occurrence of vacancy/first day of the year of recruitment. On both these dates, the petitioner did not possess the postgraduate degree and was not qualified. Following the Division Bench, the relevant date for determining the eligibility of the petitioner for promotion is the date of occurrence of vacancy/first day of the year of recruitment. On both these dates, the petitioner did not possess the postgraduate degree and was not qualified. The judgment relied by Counsel for the respondents in Ram Prabhav’s case (supra) also considered the same question and following the Division Bench judgment in Subhash Prasad’s case (supra) has held that eligibility has to be looked into on the date of occurrence of vacancy. The judgment of the Apex Court in Pooran Dass’s case (supra) also do support the contention of respondents’ Counsel. 22. In view of the foregoing discussions, none of the relief claimed by the petitioner can be granted. The writ petition lacks merit and is dismissed. ————