JUDGMENT By the Court.—Heard Sri P.N. Saxena, learned Senior Counsel appearing for the appellant - Committee of Management; Sri Vinod Sinha, learned counsel appearing for the writ petitioner - respondent No. 1 and learned Standing Counsel appearing for respondent Nos. 2, 3 and 4. 2. The appellant has come up in this appeal against the interim order passed by the learned Single Judge dated 8.7.2010, whereby a direction has been issued to the Committee of Management as well as the respondent authorities to ensure compliance of the orders passed in favour of respondent No. 1 to allow him to discharge duties and functions as Head Clerk of the Institution. 3. Mr. Saxena, learned counsel appearing for the Committee of Management, contends that the very appointment of respondent No. 1 as Assistant Clerk was in jeo-pardy and, as a matter of fact, the respondent No. 1 is not qualified for being promoted to the post of Head Clerk as well. Keeping in view the provisions of Regulation 2 of Chapter III of the U.P. Intermediate Education Act, 1921, he further submits that the order passed by the District Inspector of Schools directing that the respondent No. 1 shall be treated to have been promoted as Head Clerk from a particular future date and the order having being passed on 9th January, 2006, the same is not in consonance with the aforesaid provisions and, hence, the interim order granted by learned Single Judge is unwarranted and deserves to be set aside. 4. Mr. Vinod Sinha, learned counsel for respondent No. 1 contends that, as a matter of fact, the committee is resisting the appointment on the post of Assistant Clerk as well as subsequent promotion of respondent No. 1, right from the beginning and that is why the District Inspector of Schools passed the order on 20th November, 1999 directing the Committee of Management to promote the respondent No. 1 from Class-IV to the post of Class-III as Assistant Clerk. The Committee of Management, which was then existing, did not take any steps for promoting the respondent No. 1 on the pretext that there was an interim order passed in Civil Misc. Writ Petition No. 47650 of 1999 filed by one Nagendra Kumar. It may be noted that Nagendra Kumar was claiming appointment on compassionate basis. The said writ petition filed by Nagendra Kumar was dismissed on 14.10.2003. Writ Petition No. 47650 of 1999 filed by one Nagendra Kumar. It may be noted that Nagendra Kumar was claiming appointment on compassionate basis. The said writ petition filed by Nagendra Kumar was dismissed on 14.10.2003. The Committee of Management, by that time, was superseded and the Authorized Controller took over the charge on 28th February, 2003. A direction was issued by the District Inspector of Schools to the Authorized Controller, to comply with the direction of the District Inspector of Schools to hand over charge to the respondent No. 1 as Assistant Clerk on 14.2.2004 pursuant to the order dated 20.11.1999. Consequently, it is contended that the order dated 9.1.2006 does not suffer from any infirmity. 5. Mr. Saxena, learned counsel for the appellant then contends that as a matter of fact, the respondent No. 1 started working as Assistant Clerk and the writ petition filed by Rajendra Kumar Sharma had got nothing to do with the post held by respondent No. 1. On 9th January, 2006 an order was passed by the District Inspector of Schools for allowing respondent No. 1 to function as Head Clerk of the Institution and Rajendra Kumar Sharma as Assistant Clerk. He further submits that respondent No. 1 was not eligible to hold the said post of Head Clerk and the consideration could have been made only after completion of 5 years as Assistant Clerk in substantive capacity. As a matter of fact, respondent No. 1, worked as Head Clerk, and his experience as such cannot be counted for considering his promotion from the post of Assistant Clerk to Head Clerk after completion of five years. 6. Having considered the submissions, we find that the respondent No. 1 was entitled for being promoted as Assistant Clerk in view of the orders dated 20th November, 1999 which was not under challenge before any authority. The said promotion was delayed and accordingly when the Authorized Controller took over the administration, the respondent No. 1 was given charge as Assistant Clerk on 14th February, 2004. 7. The contention raised by Mr. The said promotion was delayed and accordingly when the Authorized Controller took over the administration, the respondent No. 1 was given charge as Assistant Clerk on 14th February, 2004. 7. The contention raised by Mr. Saxena to the effect that the post of Head Clerk could not have been occupied by respondent No. 1 prior to completion of five years as Assistant Clerk has to be accepted keeping in view the provisions of Chapter III Regulation 2 under U.P. Intermediate Education Act, 1921, which provides that a person can be promoted only after completion of 5 years in the feeder cadre. 8. In the instant case, the peculiar fact is that the respondent No. 1 completed five years of service on 13th February, 2009 in the same cadre whether as an Assistant Clerk or discharging the duties of a Head Clerk which post was available. 9. There was no other contender for the post and it was the respondent No. 1 who was discharging the duties of a Clerk. Accordingly, the respondent No. 1 acquired the qualification of working in a substantive capacity as Assistant Clerk for five years even after 14.2.2004 as is evident from the facts established on record. This position could not be successfully dislodged and as such the contention of the appellant that the respondent No. 1 is ineligible has to be rejected in view of what has been noticed above. 10. The order dated 9.1.2006, therefore, confers promotion on the respondent only on completion of five years in 2009 as admittedly the respondent No. 1 remains the sole contender and claimant for the post of Head Clerk. Had it been the case of the Management that some other candidate was also eligible, the matter may have required consideration but that not being the case, there is no occasion to fault the order dated 9.1.2006. 11. In view of this, we are of the opinion that in the absence of any contender or any candidate so as to resist the promotion of respondent No. 1 as Head Clerk, there was no option for the Committee of Management or the Authorized Controller except to accept the claim of respondent No. 1 on that post as the respondent No. 1 has completed his 5 years of service on 13th February 2009. Considering the above, we are of the opinion that the interim order passed by learned Single Judge is just and proper. In the light of what has been observed hereinabove, we do not find any reason to interfere with the order dated 8th July 2010. The appeal stands dismissed accordingly. —————