JUDGMENT Honble Dilip Gupta, J.—The petitioner who is working as a Class IV employee in the "Sanjay Moti Lal Nehru Smarak Inter College, Azamgarh” (hereinafter referred to as the ’College’) has sought the quashing of the order dated 4th December, 2006 passed by the District Inspector of Schools, Azamgarh (hereinafter referred to as the ‘DIOS’) whereby the claim of the petitioner for promotion on the vacant Class III post was rejected. 2. The petitioner was appointed on 27th June, 1989 on a Class IV post in the College, which is recognised under the provisions of ‘The U.P. Intermediate Education Act, 1921 (hereinafter referred to as the ‘Act’). Out of the three sanctioned posts of Class III employees in the College, two have been filled up by direct recruitment by Narad Shukla and Girijesh Kumar Singh. According to the petitioner, the third vacant Class III post should be filled up by promotion in terms of Regulation 2(2) contained in Chapter III of the Act, but as this was not done he filed a writ petition in this Court which was disposed of on 9th November, 2005 with a direction to the DIOS to pass appropriate orders. The DIOS rejected the claim of the petitioner by the order dated 4th December, 2006 holding that the said vacant Class III post was required to be filled up by promotion in accordance with the aforesaid Regulation but by a candidate belonging to the Scheduled Castes and since no such candidate was available for promotion, the said post should be filled by direct recruitment by a candidate belonging to the Scheduled Castes in accordance with the Government Order dated 18th December, 1990. In such circumstances, the DIOS has upheld the appointment of the Scheduled Caste candidate by direct recruitment. 3. Learned counsel for the petitioner submitted that under Regulation 2(2) contained in Chapter III of the Act, the said vacant Class III post was required to be filled up by promotion and the respondents cannot be permitted to negate this claim of the petitioner on the ground that no Scheduled Caste candidate was available for promotion. He further contended that the Government Order dated 18th December, 1990 which has been referred in the impugned order has neither been filed by the respondents and nor has it been placed before the Court. 4. He further contended that the Government Order dated 18th December, 1990 which has been referred in the impugned order has neither been filed by the respondents and nor has it been placed before the Court. 4. Sri Shashi Nandan, learned Senior Counsel assisted by Sri Govind Singh appearing for respondent No. 5, Mahendra Kumar Gond, as well as the learned Standing Counsel, however, contended that there is no infirmity in the impugned order as the said vacant Class III post was to be filled up by a Scheduled Caste candidate and since no such candidate was available for promotion, the respondents were justified in making appointment of a Scheduled Caste candidate by direct recruitment. 5. It is not in dispute that the third vacant Class III post was required to be filled up by promotion in accordance with Regulation 2(2) contained in Chapter III of the Act. What is, however, contended by the respondents is that this vacant post should be filled up by a Scheduled Caste candidate and since no Scheduled Caste candidate was available, the said post was required to be filled up by direct recruitment. Regulation 2(2) contained in Chapter III of the Act clearly provides that 50% of the Class III posts have to be filled up by promotion and indeed even the respondents do not dispute this position. The Government Order dated 18th December, 1990 which has been referred in the impugned order has not been filed either by the State or by the contesting respondents and nor was it produced before the Court at the time of hearing of the petition. Even otherwise, it is not possible to accept the contention advanced by respondents as under the relevant Regulation 2(2) contained in Chapter III of the Act at least one post has necessarily to be filled up by promotion and if this is not done, the said provision would be rendered futile. The impugned order dated 4th December, 2006, therefore, cannot be sustained and nor can the appointment of Mahendra Kumar Gond, respondent No. 5 be sustained. Though there is no prayer for quashing the appointment of respondent No. 5, but as he is a respondent in this petition and has been heard, it would be necessary to quash his appointment so that the case of the petitioner alongwith other suitable Class IV candidates can be considered for promotion against the Class III post. Though there is no prayer for quashing the appointment of respondent No. 5, but as he is a respondent in this petition and has been heard, it would be necessary to quash his appointment so that the case of the petitioner alongwith other suitable Class IV candidates can be considered for promotion against the Class III post. 6. The writ petition, therefore, succeeds and is allowed. The order dated 4th December, 2006 passed by the DIOS as well as the appointment of Mahendra Kumar Gond are set aside. The Committee of Management shall now fill up the vacant Class III post by promotion from amongst the Class IV employees working in the College. ———