V. K. SHUKLA, J. ( 1 ) 1. Ram Kumar an Assistant Teacher of Shri Nagar Ji Vidyalaya Inter College, krishna Nagar, Kanpur Nagar has approached this court questioning the validity of the promotion accorded to Sri. Rajesh Kumar Ahirwar as lecturer in English. ( 2 ) BRIEF background of the case is that in the district of Kanpur Nagar there is recognized institution known as Shri Nagar Ji Vidyalaya Inter College, krishna Nagar, Kanpur Nagar. In the institution concerned Sri. Rajesh kumar Ahirwar has been appointed as L. T. Grade teacher on Ad-hoc basis on 1. 3. 1993. Petitioner has been appointed as Assistant Teacher in the institution as L. T. Grade on 4. 11. 1996 on substantive basis. Service of sri. Rajesh Kumar Ahirwar has been regularized on 21. 4. 1999 w. e. f. 20. 4. 1998. In the institution concerned, there are six sanctioned posts of lecturer, out of which, 3 posts had already been filled up by way of direct recruitment by appointment of Sri. B. G. Dwivedi, Sri S. N. Jaiswal and Sri. V. K. Dixit respectively. One Sri J. L. Srivastava had been performing and discharging his duty as Lecturer in English, retired on 30. 6. 2000. Only one post of Lecturer had been filled up by way of promotion by promoting Sri. G. N. Tiwari in Chemistry subject and as such post in question which had fallen vacant on account of attaining the age of superannuation was to be filled up by way of promotion. Undisputed factual position, which has emerged is that on the first day of the year of recruitment i. e. 1. 7. 2000, neither petitioner nor Sri. Rajesh Kumar ahirwar had to their credit Masters degree in English which was essential qualification for being promoted as Lecturer in English. Sri. Akhilesh kumar had acquired his Master degree on 21. 7. 2001 and petitioner had acquired his Master degree in academic session 2002. Post in question was meant for Scheduled Caste category candidate. It appears that both petitioner as well as Rajesh Kumar Ahirwar staked their claim for being promoted. Rajesh Kumar Ahirwar had preferred Civil Misc. Writ Petition No. 2844 of 2002 claiming promotion and he appraised the D. I. O. S. that in case he would be accorded promotion, he would withdraw his writ petition and further reference was given to Government Order dated 17. 4. Rajesh Kumar Ahirwar had preferred Civil Misc. Writ Petition No. 2844 of 2002 claiming promotion and he appraised the D. I. O. S. that in case he would be accorded promotion, he would withdraw his writ petition and further reference was given to Government Order dated 17. 4. 2003 and matter was referred. Thereafter, promotion has been accorded to Sri. Rajesh Kumar ahirwar, at this juncture present writ petition has been filed. ( 3 ) ON the presentation of writ petition, Sri R. K. Ojha, Advocate has entered appearance on behalf of the respondents No. 6 along with Sri A. K. Singh advocate, and he submitted on the basis of the undisputed fact that present writ petition be finally decided, as such with the consent of the parties, present writ petition is being heard and finally decided. ( 4 ) SRI I. R. Singh,advocate along with Sri Alok Dwivedi, Advocate contended that in the present case petitioner as well as Rajesh Kumar Ahirwar were not at all ellegible to be promoted as on the first day of the year of recruitment they did not have to their credit Masters degree in English, as such by no stretch of imagination Rajesh Kumar Ahirwar could have been promoted and post in question in all eventuality has to be filled up by way of direct recruitment as such writ petition deserves to be allowed. Sri R. K. Ojha, learned counsel for the respondents contended that it is true that on the first day of the year of recruitment Sri Rajesh Kumar ahirwar was not ellegible but relaxation has been accorded in term of government Order dated 17. 4. 2003 and as such there is no infirmity in the promotion, which has been accorded. At this juncture Rules, 10 and 14 of U. P. Secondary Education Services selection Board, Rules, 1998 is being quoted below:- 10. Source of recruitment recruitment to various categorizers of teachers. (a) Principal of an Intermediate College-or Headmaster of a High School. By direct recruitment (b) Teachers of lecturers grade (i) 50 per cent by direct recruitment. (ii) 50 percent by promotion from amongst substantively appointed teachers of the trained graduates grade. Source of recruitment recruitment to various categorizers of teachers. (a) Principal of an Intermediate College-or Headmaster of a High School. By direct recruitment (b) Teachers of lecturers grade (i) 50 per cent by direct recruitment. (ii) 50 percent by promotion from amongst substantively appointed teachers of the trained graduates grade. (c) Teachers of trained graduates grade (i) 50 percent by promotion from amongst the substantive appointed teachers of Certificate of Teaching grade; provided that it in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment. Provided further that if in calculating respective percentages of posts under this rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post. 14. Procedure for recruitment by promotion- (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates grade or certificate of Training grade, if any, who possess the qualification 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 grade, as the case may be, without their having applied for the same. Note- For the purposes of this sub-rule, regular service rendered in any other recognized institution shall be counted for eligibility unless interrupted by removal dismissal or reduction to lower post. (2) The criterion for promotion shall be seniority subject to the rejection of unfit. (3) The Management shall prepare a list of teachers referred to in sub-rule (1), and forward it to the Inspector with a copy of seniority list, service records, including the character rolls, and a statement in the proforma given in Appendix-A. (4) Within three weeks of the receipt of the list from the Management under sub-rule (3), the Inspector shall verify the facts from the record of his office and forward the list to the Joint Director. (5) The Joint Director shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call for such additional information as it may consider necessary. (5) The Joint Director shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee referred to in subsection (1) of Section 12 and after the Committees recommendation, shall forward the panel of selected candidates within one month to the inspector with a copy thereof to the Management. (6) Within ten days of the receipt of the panel from the Joint Director under sub-rule (5) the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorization under its resolution issue the appointment order in the proforma given in Appendix f to such candidate. ( 5 ) A bare perusal of aforementioned rules would go to show that source of recruitment has been provided for, and it has been clearly provided for that if in any hear of recruitment, suitable elligible candidates are not available for recruitment by promotion, the post may be filled up by way of promotion and further where any vacancy is to be filled by promotion all teachers working in trained graduates grade or certificate of Training grade, if any, who possess the qualification 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 grade, as the case may be, without their having applied for the same. Criteria for promotion shall be seniority subject to the rejection of unfit as per sub-rule (2) of Rule 14. Sub- rule (3) the Management shall prepare a list of teachers referred to in sub-rule (1), and forward it to the Inspector with a copy of seniority list, service records, including the character rolls, and a statement in the proforma given in Appendix-A. Sub-rule (4) of Rule 14 within three weeks of the receipt of the list from the Management under sub-rule (3), the Inspector shall verify the facts from the record of his office and forward the list to the Joint Director. Sub- rule (5) of Rule 14 The Joint Director shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee referred to in subsection (1) of Section 12 and after the Committees recommendation, shall forward the panel of selected candidates within one month to the inspector with a copy thereof to the Management. Sub -rule (6) of Rule 14 within ten days of the receipt of the panel from the Joint Director under sub-rule (5) the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorization under its resolution issue the appointment order in the proforma given in Appendix f to such candidate. ( 6 ) AT this juncture it is relevant to note that Reservation in promotion is applicable by virtue of Government Order dated 12. 07. 1978 issued by State government providing for reservation in Non-Government aided higher secondary Schools. Division Bench of this Court, in the case of Krishna pal Singh vs. Government of U. P. 1981 UPLBEC 521, has already upheld providing for reservation in promotion in aided institutions. This Court in the writ petition filed by Rama Kant Mishra, decided on 09. 08. 2005 took the view that in case post was reserved for Scheduled Caste Category candidate, and no one eligible in the next grade was available, then same would have to be filled up from Scheduled Caste category candidate by way of direct recruitment, and same could not be filled up by way of promotion from amongst General Category candidates. Following the said judgment, on 11. 08. 2005, writ petition filed by Smt, Sunita Bhagat was dismissed. Smt. Sunita Bhagat preferred Special appeal No. 1094 of 2005, which was decided on 22. 09. Following the said judgment, on 11. 08. 2005, writ petition filed by Smt, Sunita Bhagat was dismissed. Smt. Sunita Bhagat preferred Special appeal No. 1094 of 2005, which was decided on 22. 09. 2005, and the view taken in the case of Rama Kant Mishra was disapproved as follows: "as observed above, the judgment of Rama Kant Mishras case (supra) given by learned single Judge, following which the writ petition of the appellant was dismissed, proceeded on the premise that the Government order dated 18th December, 1990 specifically permits for converting the post for promotion which is reserved for scheduled caste category candidate into a direct recruitment and vice versa although the said government Order is not applicable in the present case and the case of the appellant is fully covered by Clause-5 of the Government Order dated 12th july, 1978, we cannot agree with the view taken by the learned single judge in Rama Kant Mishras case (supra ). We hold that the judgment in rama Kant Mishras case (supra) does not lay down the correct law. The writ petition of the appellant was dismissed on the basis of the said judgment. ( 7 ) RULE 10 of the U. P. Secondary Education Service Selection Board Rules, 1998 provides for source of recruitment to various categories of teachers. For lecturer grade 50% quota are to be filled up by direct recruitment and 50% by promotion from amongst substantively appointed teachers of the trained graduate grade. Proviso to the said Rule provides that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment. Thus only in the event suitable eligible candidates are not available for recruitment for promotion, the post can be filled up by direct recruitment. Rule 10 of 1998 rules is quoted below: "10. Thus only in the event suitable eligible candidates are not available for recruitment for promotion, the post can be filled up by direct recruitment. Rule 10 of 1998 rules is quoted below: "10. Source of recruitment- Recruitment to various categories of teachers:- (a) Principal of an Intermediate College or Head Master of a High School by direct recruitment (b) Teachers of lecturers grade (i) 50 per cent by direct recruitment (ii)50 per cent by promotion from amongst substantively appointed teachers of trained graduate grade (c) Teachers of Trained promotion from graduate graduate grade substantively appointed teachers of trained graduate grade provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment provided further that if in calculating respective percentage of posts under this rule there comes a fraction then the fraction of the post to be filled by direct recruitment shall be ignored and fraction of the post to be filled by promotion shall be increased to make it one post. " ( 8 ) RULE 14 of 1998 Rules requires consideration of all trained graduate teachers to be considered where any vacancy is to be filled up by promotion. Rule 14 of 1998rules is quoted below for ready reference: "14. Procedure for recruitment by promotion (1) where any vacancy is to be filled by promotion all teachers working in trained graduate grade or certificate of Training Grade, if any, who possess the qualification prescribed for the post and have completed five years continuous regular service as such on the first date of the year of recruitment shall be considered for promotion to the lecturers grade or the trained graduates grade, as the case may be, without there having applied for the same. " From conjoint reading of the aforesaid two rules, it is clear that every teacher of trained graduates grade who possess the qualification prescribed for the post and have completed five years continuous regular service is entitled to be considered for any vacancy which is to be filled up by promotion without there having appointed for the same. " From conjoint reading of the aforesaid two rules, it is clear that every teacher of trained graduates grade who possess the qualification prescribed for the post and have completed five years continuous regular service is entitled to be considered for any vacancy which is to be filled up by promotion without there having appointed for the same. Even on the strength of Clause -5 of the Government Order dated 12th July, 1978 when a post reserved for any reserve category candidates the same has to be filled up by any other reserved category candidate whose quota is unfilled up and in the event of non-availability of any reserved category candidate the post can be filled up by general category candidate, the above clause implies a duty on the authorities to consider the case of trained graduate teachers for promotion of general category in the event no eligible candidate of any reserved category is available. In the present case admittedly no eligible candidate of scheduled caste category was available in trained graduates grade for being promoted as lecturer Psychology. It is not the case of any of the parties that apart from scheduled caste category candidate there was any other reserved category candidate available for promotion on the post of lecturer Psychology, consequently the post of lecturer Psychology was to be filled up by considering the general category candidates fulfilling the qualification for promotion by virtue of Clause -5 of the Government Order dated 12th July, 1978 as noted above. ( 9 ) ALTHOUGH the appellant has contended that no requisition was sent by the college for direct recruitment but there is material on the record, as pointed out by Sri R. S. Parihar, learned counsel for the Selection Board, that management has sent the requisition for the post of lecturer psychology for filling it by direct recruitment by a scheduled caste category candidate. The copy of the said requisition was brought on record of the writ petition by counter affidavit filed on behalf of U. P. Secondary Education Service Selection Board. It is, thus, clear that committee of Management after converting the post of lecturer Psychology from promotion quota to direct recruitment quota for scheduled caste category sent requisition for direct recruitment. The copy of the said requisition was brought on record of the writ petition by counter affidavit filed on behalf of U. P. Secondary Education Service Selection Board. It is, thus, clear that committee of Management after converting the post of lecturer Psychology from promotion quota to direct recruitment quota for scheduled caste category sent requisition for direct recruitment. Sending the requisition for filling the post by direct recruitment by a scheduled caste category candidate without considering general category candidates available in the trained graduates grade fulfilling the eligibilities was contrary to law and cannot be sustained, consequently the selection made by U. P. Secondary education Service Selection Board on the basis of said requisition by direct recruitment by scheduled caste candidate cannot be sustained. The selection of respondent No. 6 and sending her name by the U. P. Secondary education Service Selection Board to the institution for appointment on the post of lecturer Psychology, thus, cannot be sustained and is here by quashed. The respondents are directed to consider the appellant for promotion on the post of lecturer Psychology in accordance with law. We, however, observe that respondent No. 6 having been selected by the Board as scheduled caste candidate, it is open for respondent No. 6 to represent to the U. P. Secondary Education Service Selection Board to adjust respondent No. 6 in any other institution according to her merit and preference. ( 10 ) IN the result, the appeal is allowed. The judgment and order of learned single Judge dated 11th August. 2005 is set aside. The writ petition is allowed to the extent as indicated above, against the said judgment, Civil Appeal No. 5679 of 2006, Rachna Rani vs. State of U. P. had been filed, and therein on 08. 12. 2006, Honble Apex court has allowed Civil appeal, by setting aside the Division Bench judgment and ratifying the order of appointment of Single Judge as follows: "leave granted. Heard learned counsel appearing o behalf of respective parties and perused the order passed by the High Court which is impugned in this appeal. The government of U. P. in paragraph 7 of its counter affidavit has reproduced rule 10 of the U. P. Secondary Education Service Selection Board Rules, 1998 which were framed under Section 35 of the said Act. The government of U. P. in paragraph 7 of its counter affidavit has reproduced rule 10 of the U. P. Secondary Education Service Selection Board Rules, 1998 which were framed under Section 35 of the said Act. It is also stated that the Rules came into force from the date of its publication in the official gazette, i. e. , 13th July, 1998. for the sake of convenience, we also reproduce rule 10 as under: "10. Source of recruitment- Recruitment to various categories of teachers:- (a) Principal of an By direct recruitment Intermediate College or Head master of a High School (b) Teachers of lecturers grade (i) 50 per cent by direct recruitment (ii) 50 per cent by promotion from amongst substantively appointed teachers of trained graduate grade (c) Teachers of Trained promotion from amongst graduate grade substantively appointed teachers of trained graduate grade Provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment provided further that if in calculating respective percentage of posts under this rule there comes a fraction then the fraction of the post to be filled by direct recruitment shall be ignored and fraction of the post to be filled by promotion shall be increased to make it one post. " ( 11 ) A perusal of the above rule will show that in case eligible candidates are not available to fill up the post in promotional quota then the same post can be filled up by direct recruitment. Since no Scheduled Caste candidate was available in L. T. Grade top be promoted to the post of lecturer hence direct recruitment was made to fill up the said post. The Rules have an overriding effect on the Government Order dated 12. 07. 1978. However, in this case, the high Court has relied upon the government Order dt. 12. 07. 1978 and allowed the writ petition filed by respondent No. 6 (Rachna rani), the appellant herein. The High Court has failed to notice the rules framed under Section 35 of the said Act on 13. 07. 1998. the whole approach made by the High court is not correct. 12. 07. 1978 and allowed the writ petition filed by respondent No. 6 (Rachna rani), the appellant herein. The High Court has failed to notice the rules framed under Section 35 of the said Act on 13. 07. 1998. the whole approach made by the High court is not correct. We, therefore, have no other option but top set aside the order passed by the Division Bench of the High Court and ratify the order of appointment of the learned single Judge made in favour of the appellant herein. The appeal stands allowed accordingly. No costs. ( 12 ) ON the touchstone of the Rules quoted above and the dictum of Honble Apex court undisputed factual position, which is emerging is that on the first day of the year of recruitment i. e. 1. 7. 2000 neither petitioner nor Sri rajesh Kumar Ahirwar were eligible to be promoted as undisputedly they lacked eligibility qualification for being accorded promotion as Masters degree in English was acquired by Sri Rajesh Kumar Ahirwar on 21. 7. 2001, and by petitioner in July, 2002. Honble Apex Court, in the case of Ashok kumar Sonkar Vs. Union of India, 2007 (2) E. S. C. 169, has clearly ruled out, that eligibility has to be seen in context of cut off date, provided in Advertisement or Rules, and if as per the same, on the relevant date requisite qualification is not there, then incumbent has to be treated an ineligible, and subsequent acquiring of qualification, will not make incumbent eligible. Matter before Honble Apex Court, though was arising in context of direct recruitment but same principles will apply with full force, in the matter of promotion also, as eligibility has to be seen in context of cut of date provided for. Under Rule 14 of 1998 Rules, cut of date, is the first day of the year of recruitment, and eligibility has to be seen in context of said date. As mentioned on 1. 7. 2000, which is the first day of year of recruitment, neither petitioner nor Respondent Sri rajesh Kumar Ahirwar, possessed the qualification, prescribed for. Promotion has to made, in accordance with 1998 Rules, and once promotion has been made in utter breach of the same, then same cannot be subscribed. ( 13 ) MUCH reliance has been placed on the Government Order dated 17. 4. Promotion has to made, in accordance with 1998 Rules, and once promotion has been made in utter breach of the same, then same cannot be subscribed. ( 13 ) MUCH reliance has been placed on the Government Order dated 17. 4. 21003 which is in relation to the filling of backlog vacancy. In the present case, as per relevant 1998 Rules in each year of recruitment/obligation is cast upon the management to determine the vacancy as to whether same is to be filled up by way of promotion or by way of direct recruitment and proceed accordingly. Thus, determination has to be done, qua the first day of the year of recruitment in reference to whether vacancy has to be filled up by way of promotion or by way of direct recruitment. Government order will not at all come into play where Rules are specific and precise and clearly obligates the management to determine the vacancy in every year of recruitment and as such there cannot be any occasion for backlog vacancy qua in each year of recruitment. Once in the said year of recruitment, qualified eligible persons are not available, for promotion, then same has to be filled up by way of direct recruitment as per Rules. Even otherwise under U. P. Secondary Education Services Selection Board act, 1982 and U. P. Secondary Education Services Selection Board Rules, 1998 no authority whatsoever has been vested with the State Government to accord any relaxation in the matter of eligibility. Said Government Order cannot be permitted to operate in confrontation with the statutory provisions and statutory rules, which have been framed and are clear and categorical. Consequently recourse could not have been taken the said government Order. ( 14 ) CONSEQUENTLY writ petition is allowed. Promotion accorded to Sri Rajesh kumar Ahirwar as Lecturer in English is quashed. Immediate steps shall be undertaken to fill up post of Lecturer in English by way of direct recruitment. It is made clears that in respect of future promotion, action be taken strictly in consonance with the provision as contained in Rule 14 of the 1998 Rules. No orders as to cost. .