JUDGMENT Hon’ble Tarun Agarwala, J.—The petitioner was appointed as an Assistant Teacher in C.T. Grade in the year 1985. Since this C.T. Grade was declared a dying cadre, it is alleged, that the petitioner was upgraded in L.T. Grade. On 30.6.1997, the Principal of the institution retired and the seniormost teacher, one Shesh Mani Tripathi, a Lecturer in History, was appointed as an adhoc principal in the institution. Consequently, the post of lecturer in History fell vacant. It is alleged that the Committee of Management passed a resolution dated 8.10.1997, to promote the petitioner, as a lecturer on an adhoc basis. The papers were forwarded to the District Inspector of Schools for its approval. It is alleged that one Dharam Raj Yadav raised an objection with regard to the promotion of the petitioner. The District Inspector of Schools, by an order dated 22.12.1998, accorded approval for the promotion of the petitioner and rejected the claim of Dharam Raj Yadav. It is alleged that Dharam Raj Yadav filed an appeal before the Joint Director, which was allowed by an order dated 29.4.1999. The petitioner filed a writ petition No. 30222 of 1999. 2. During the pendency of the aforesaid writ petition, it transpires that Sri Paresh Kumar Gupta was recommended as a Lecturer in History by the U.P. Secondary Education Services Board, pursuant to which, the District Inspector of Schools, by a letter dated 25.1.2005, directed the Management to issue an appointment letter to Sri Paresh Kumar Gupta. The petitioner, being aggrieved by the recommendation of the District Inspector of Schools, has filed Writ Petition No. 8056 of 2005. 3. The petitioner’s contention is that there are seven posts of Lecturer in the institution. 50% of the posts are required to be filled up by way of promotion, as contemplated under Regulation 5 of Chapter II of the Regulations framed under the Intermediate Education Act read with Rule 10(b) of the U.P. Secondary Education Service Selection Board Rules, 1998. Consequently, four posts are required to be filled by way of promotion, out of which, one post had been filled up by way of promotion and that the remaining three posts are still vacant. The petitioner contends that he is eligible for being promoted as a lecturer in History under the relevant rules, and that the action of the respondents in not promoting him was wholly illegal. 4. The petitioner contends that he is eligible for being promoted as a lecturer in History under the relevant rules, and that the action of the respondents in not promoting him was wholly illegal. 4. The learned counsel for the petitioner further submitted that the recommendation made by the District Inspector of Schools, recommending the name of Paresh Kumar Gupta, as a Lecturer in History was wholly illegal, inasmuch as, the petitioner was entitled to be promoted under the promotion quota. In support of his submission, the learned counsel placed reliance upon two documents dated 31.5.2005 issued by the Committee of Management, which indicated that three posts of Lecturer was required to be filled up by way of promotion. In paragraph 13 and 18 of the Writ Petition No. 8056 of 2005, it is alleged that out of seven posts, three posts under the promotion quota are still available. The Committee of Management in their counter affidavit has denied this fact and submitted that the documents dated 31.5.2004 is a forged and fabricated document. The District Inspector of Schools in his counter affidavit, has admitted the contents of paragraph 13 and 18 of the writ petition including the document dated 31.5.2004. In view of the aforesaid, there is conflicting stand between the respondents with regard to the question of the number of posts which are required to be filled up by way of promotion. 5. Further, the learned counsel for the petitioner submitted that the recommendation made by the District Inspector of Schools for giving an appointment to Paresh Kumar Gupta was illegal, inasmuch as, the vacancy on the post of lecturer in history was never advertised as per Rule 12 of the Rules of 1998. Since the post was not advertised, the Selection Board could not recommend the name of Sri Paresh Kumar Gupta for an appointment on the said post. 6. In my view, the petitioner is not entitled to challenge the recommendation of the District Inspector of Schools, inasmuch as, he is only a postman, who had communicated the recommendation of the Selection Board to the Committee of Management. The petitioner has not challenged the recommendation of the Selection Board. Further Paresh Kumar Gupta had already been appointed as a Lecturer in History in the institution and was issued an appointment letter. No effort has been made by the petitioner to challenge the appointment of Paresh Kumar Gupta. The petitioner has not challenged the recommendation of the Selection Board. Further Paresh Kumar Gupta had already been appointed as a Lecturer in History in the institution and was issued an appointment letter. No effort has been made by the petitioner to challenge the appointment of Paresh Kumar Gupta. The learned counsel for the petitioner placed reliance upon a decision of a Division Bench of this Hon’ble Court in Satish Kumar v. State of U.P. and others, (Civil Misc. Writ Petition No. 46861 of 2005) in which it was held that an unadvertised vacancy of Lecturer in Intermediate College could not be filled up from those candidates who had been selected in an earlier selection and that such a candidate could not be adjusted in respect of a vacancy which had been intimated and notified but was not advertised. Relying upon the said judgment, the learned counsel for the petitioner submitted that the vacancy of the post of Lecturer in History was never advertised. This fact has nowhere been alleged by the petitioner in the writ petition. However, the learned counsel for the Selection Board, Sri R.P. Dubey, fairly conceded, that the appointment of Paresh Kumar Gupta was made on a vacancy which was not advertised and that Paresh Kumar Gupta was selected pursuant to an earlier selection. The learned counsel for the Selection Board submitted that these adjustments in vacancies, which were not advertised, was made pursuant to the judgment of this Court in the case of Smt. Savita Gupta v. State of U.P. and others, 2004(5)ESC 264. The learned counsel submitted that the judgment in Savita Gupta case (supra) was over ruled by the Division Bench in the case of Satish Kumar (supra). Unfortunately, the appointments was made bonafidely which could not be set aside merely because the said judgment has now been overruled by a Division Bench. 7. The Division Bench had passed the judgment on 22.9.2006 over ruling the decision of the learned Single Judge which was passed on 9.7.2004. The recommendation made by the Selection Board in favour of Paresh Kumar Gupta was made on 11.9.2004. Consequently, this Court is of the opinion that the appointment of Sri Paresh Kumar Gupta on the post of lecturer in History cannot be set aside on the ground that the appointment was made on a vacancy which was not advertised. The recommendation made by the Selection Board in favour of Paresh Kumar Gupta was made on 11.9.2004. Consequently, this Court is of the opinion that the appointment of Sri Paresh Kumar Gupta on the post of lecturer in History cannot be set aside on the ground that the appointment was made on a vacancy which was not advertised. This is on account of the fact that the recommendation made by the Selection Board was made in pursuance of a judgment of this Court. Even though the said judgment has been set aside by a Division Bench, in my view, the judgment of the Division Bench will govern the law prospectively and cannot be made with retrospective effect. Even otherwise, the petitioner has neither challenged the appointment order of Paresh Kumar Gupta nor the recommendation of the Selection Board and, consequently, the petitioner is not entitled for any relief in this regard. 8. With regard to the question of promotion of the petitioner on the post of Lecturer, I find that conflicting stand has been taken by the respondents. The Committee of Management alleges that there are no post of Lecturer to be filled up by way of promotion whereas, the District Inspector of Schools admits that three posts are required to be filled up by way of promotion. Consequently, this Court is not in a position to decide this factual controversy in a writ jurisdiction. In my view, the Regional Director of Education is the appropriate authority to consider the question of promotion. 9. In view of the aforesaid, the petitioner’s claim for the quashing of the recommendation of the District Inspector of Schools with regard to the appointment of Paresh Kumar Gupta fails. However, this Court directs the petitioner to move an appropriate application before the Regional Director of Education with regard to his promotion on the post of Lecturer in History. If such an application is moved, the Regional Director of Education will decide the question of the number of vacancies which are required to be filled up by way of promotion and if he finds that a vacancy exists and that the petitioner is also eligible, he will pass an appropriate order on the application of the petitioner within three months from the date of the production of a certified copy of this order. It is made clear that the Regional Director of Education will pass the orders after hearing all the concerned parties. 10. In view of the partial success, the writ petitions of Jagdish Prasad Tewari are disposed of. Parties shall bear their own cost. 11. The petitioner, Lalji Patel contended that he was appointed as an Assistant Teacher in the year 1972 and that he was entitled for being promoted to the post of Lecturer in English in the institution concerned. The petitioner alleged that the Committee of Management was going to appoint another person on the post of lecturer and consequently filed Writ Petition No. 1786 of 1991 praying that the Committee of Management should be restrained from making any appointment on the post of Lecturer in English and that a mandamus should be issued to the respondents to promote the petitioner on the post of Lecturer in English. 12. During the pendency of the said writ petition, another post of lecturer in Sociology fell vacant and the petitioner claimed that he was entitled to be promoted under the 50% quota, on the post of Lecturer in Sociology. Inspite of his claim on the said post, it transpires, that the Selection Board appointed Vineeta Gupta and Subhash Chandra Tewari as Lecturers in Sociology. The petitioner accordingly filed Writ Petition No. 54358 of 2005 praying for the quashing of the orders issued by the Selection Board and for a writ of mandamus commanding the respondents to promote the petitioner on the post of Lecturer in Sociology. The ground urged is the same as averred by the petitioner Jagdish Prasad Tewari in Writ Petition No. 8056 of 2005. 13. In view of the aforesaid, the relief claimed by Lalji Patel for quashing of the appointments of Vineeta Gupta and Subhash Chandra Tewari as lecturers in Sociology fails. However, if an application is made by the petitioner before the Regional Director of Education, for his promotion the Regional Director of Education will decide the question of the number of vacancies which are required to be filled by way of promotion and if he finds that a vacancy exists and that the petitioner is also eligible, he will pass an appropriate order on the application of the petitioner within three months from the date of the production of a certified copy of this order. It is made clear that the Regional Director of Education will pass the order after hearing all the concerned parties. The writ petitions of Lalji Patel are accordingly disposed of. ———