JUDGMENT Honble H.L. Gokhale, CJ.—The dismissal of the writ petition filed by the petitioner for setting aside the order dated 6th May, 2003 passed by the Joint Director of Education holding the petitioner ineligible for promotion to the post of Lecturer in an Intermediate Institution situated in District Jaunpur has led to the filing of this Special Appeal. 2. The petitioner appellant had joined as LT grade teacher in the Institution on 1st November, 1996. A Lecturer in Physics in the Institution retired on 30th June, 2001 and the resultant vacancy was required to be filled up by promotion. The Committee of Management resolved on 1st July, 2002 to promote the petitioner and thereafter forwarded the papers relating to promotion of the petitioner on 16th August, 2002 but the Joint Director of Education by the order dated 6th May, 2003 rejected the proposal of the Committee of Management on the ground that the petitioner did not have the requisite five years continuous regular service on the first day of the year of recruitment. 3. The learned Judge examined the relevant provisions of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the “Act") and the provisions of U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the 1998 Rules’) and in view of the Division Bench judgment of this Court in Subhash Prasad v. Regional Selection Committee through its Chairman and others, 2004 (3) ESC 1385, wherein it was observed that the first day of the year of recruitment is that year in which the vacancy is ascertained in terms of the 1998 Rules, concluded that since the vacancy had occurred on 1st July, 2001, the first day of the year of the recruitment would be 1st July, 2001 and since on that date, on the own showing of the retitioner, he did not have five years continuous regular service, he was not eligible for promotion. 4. We have heard Sri Ashok Khare, learned Senior Counsel for the appellant assisted by Sri R.S. Maurya as well as Dr. Y.K. Srivastava, learned Standing Counsel appearing for respondent Nos. 1, 2 and 3. 5. Sri Ashok Khare, learned Senior Counsel for the appellant submitted that the year of recruitment is the year in which actual recruitment takes place and not the year in which the vacancy occurs. Y.K. Srivastava, learned Standing Counsel appearing for respondent Nos. 1, 2 and 3. 5. Sri Ashok Khare, learned Senior Counsel for the appellant submitted that the year of recruitment is the year in which actual recruitment takes place and not the year in which the vacancy occurs. It is his submission that since there is a change in the language contained in Rule 14 of the 1998 Rules in comparison to what is contained in Regulation 6 of Chapter II of the U.P. Intermediate Education Act, 1921 wherein the eligibility is required to be seen on the date of occurrence of the vacancy, the intention of the Legislature while framing the 1998 Rules was to deviate from the existing position and so the year of recruitment should only mean the year in which the recruitment takes place in support of his contention he has placed reliance upon the decision of the Supreme Court in Harish Chandra Ram v. Mukh Ram Dubey and others, 1994 Supp. (2) SCC 490. 6. On the other hand Dr. Y.K. Srivastava, learned Standing Counsel has submitted that the consistent view of this Court has been to treat the first day of the year of recruitment as the year in which the vacancy is ascertained and, therefore, the petitioner-appellant was not eligible to be promoted under Rule 14 of the 1998 Rules. 7. It is not in dispute that the vacancy on the post of Lecturer was required to be filled up by promotion in accordance with the provisions of Rule 14 of the 1998 Rules which is as follows : “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.” 8. The year of recruitment has been defined under Section 2(l) of the Act, which is as follows : “2(l). “Year of recruitment” means a period of 12 months commencing from July 1st of a calendar year.” 9. The year of recruitment has been defined under Section 2(l) of the Act, which is as follows : “2(l). “Year of recruitment” means a period of 12 months commencing from July 1st of a calendar year.” 9. The Division Bench of this Court in Subhash Prasad (supra) while interpreting Rule 14 of the U.P. Secondary Education Services Commission Rules, 1995 (hereinafter referred to as the 1995 Rules’) which also deals with the procedure for recruitment by promotion and prescribes that such teacher who possess the qualifications for the post and have completed five years continuous regular service as such on the first day of the year of recruitment, has after taking into consideration the provisions of the Act and 1995 Rules clearly taken the view that the first day of the year of recruitment is that year of recruitment in which the vacancy is ascertained and the relevant observations are as follows : “We are clearly of the opinion that taking into consideration the scheme underlying the U.P. Secondary Education Services Selection Board Act, 1982 and the Rules of 1995 framed thereunder, it was obligatory to compute the five years’ continuous service ending on the first day of the year of recruitment which had to be taken to be that year of recruitment in which the vacancy was ascertained for being forwarded to the Commission through the Inspector ensuring that it reached the Inspector by 15th of July. The zone of consideration or the field of eligibility of eligible and suitable candidates cannot be permitted to be enlarged at the whim of the Committee of Management or get enlarged on account of its failure to either ascertain the vacancy or send it to the Inspector in the manner prescribed or delay the action contemplated under Rule 14(3) of the Rules of 1995.” 10. Another Division Bench of this Court in Writ Petition No. 290 of 2005 (Shyam Narain Mishra v. District Inspector of Schools, Allahabad and others) has also taken the same view and has observed : “In case the year of recruitment is allowed to reckon with reference to the date on which the Management decide to proceed with the recruitment, that would make the year of recruitment to be uncertain and may confer arbitrary power upon the Management to delay its decision in order to defeat the lawful claim of a teacher of the institution. In the absence of any provision, suggesting to confer such authority on the Management, it is always prudent to interpret a provision, which will prevent arbitrariness and undaunted discretion on the part of the authorities. Since the date of occurrence of vacancy is certain, the first day of July of such year would be the year of recruitment as it would prevent Management from enlarging or deferring the year of recruitment in the manner it likes.” 11. The same view was taken by another Division Bench of this Court in Poonam (Kum.) v. State of U.P. and others, (2008) 2 UPLBEC 1313 wherein while interpreting Rules 10 and 14 of the 1998 Rules the following observations have been made : ”Considering Rules 10 and 14, this Court has repeatedly held that for the purpose of eligibility and qualification it is the year of recruitment in which the vacancy occurred which would be relevant and not the date on which the Management sought to fill in the vacancy as the eligibility and qualification etc. would not depend on the sweet will of the Management but on a fixed criteria determined by law, i.e., the “year of recruitment” in which the vacancy occurred.” 12. We have perused the various provisions of the Act and the 1998 Rules and see no good reason to take a different view. 13. Sri Ashok Khare, learned Senior Counsel appearing for the appellant has, however, placed reliance upon the decision of the Supreme Court in Harish Chandra Ram (supra). In this case the appellant who was a Scheduled Caste candidate was promoted on the post required to be filled up by a Scheduled Caste candidate according to the roster. A general category candidate called in question the said promotion and the High Court set aside the appointment of the appellant and directed that the case of all the eligible candidates should be considered. Before the Supreme Court it was contended on behalf of the respondent general category candidate that though the vacancy was reserved for Scheduled Caste but since it could not be filled up in three successive years, it must be deemed that the vacancy had been de-reserved and thrown open for the general category candidates. Before the Supreme Court it was contended on behalf of the respondent general category candidate that though the vacancy was reserved for Scheduled Caste but since it could not be filled up in three successive years, it must be deemed that the vacancy had been de-reserved and thrown open for the general category candidates. The Supreme Court observed that even if the reserved category candidates are not available then too the vacancy cannot be thrown upon to the general category candidates unless de-reservation is done. It is in this context that the Supreme Court observed that de-reservation will be considered only at the end of third recruitment year provided reserved category candidates were not available or were not found fit for promotion and that the recruitment year is the year in which the recruitment takes place. 14. In the present case, as mentioned hereinabove, the recruitment year has been defined and in view of the provisions of the Act and the Rules, to which references have been made in the aforesaid Division Bench decisions of this Court, the aforesaid decision of the Supreme Court will be of no assistance to the appellant. The change brought about in the 1998 Rules from the earlier Rules contained in Regulation 6 of Chapter II of the Intermediate Education Act do not lead to the inference that the year of recruitment should mean the year in which the recruitment takes place and not the year in which vacancy occurs. It is, therefore, not possible to accept the contention of Sri Ashok Khare, learned Senior Counsel for the appellant that the year of recruitment should be the year in which the actual recruitment takes place and not the year in which the vacancy exists. 15. For all the reasons stated above there is no merit in this Special Appeal. It is, accordingly, dismissed. ————