Amreshwar Pratap Sahi,J.:- 1. Heard learned counsel for the petitioner Sri P.N. Pandey, learned Standing Counsel for the respondents no. 1 and 2, Sri P.S. Shukla for the respondent no. 4 and Sri R.K. Ojha has been heard for the contesting respondent no. 5. 2. The writ petition questions the legality of the selections and promotion of the respondent no. 5 as an Assistant Clerk in Sri Desh Raj Narang Dayanand Inter College, Govind Nagar, Walterganj District Basti which is an institution governed by the U.P. Intermediate Education Act 1921 and the regulations framed thereunder. 3. The petitioner contends that he was appointed as a Daftari which is also a Class IV post on 29.11.1996 and the so was the respondent no. 5 as a Class IV employee on the same date. The date of birth of the petitioner is 1st July 1975 whereas the date of birth of the respondent no. 5 is 10th January 1977. It may be stated at the outset that the aforesaid facts upon a perusal of the pleadings to that extent are undisputed. 4. In the institution there are four posts of Class III including one post of Head Clerk and three post of Assistant Clerks. One Sri T.P. Mishra who was working as Head Clerk retired on 30th July 2006 and an Assistant Clerk Sri R.C. Shukla retired on 31st June 2006. Thus two posts fell vacant for which an exercise was undertaken by the then Management represented by the Prabandh Sanchalak for filling them up. A proposal was drawn up on 4th December 2006 whereby Anil Kumar Pandey the Assistant Clerk in the Institution was promoted as a Head Clerk and the post which had fallen vacant due to retirement of Sri R.C. Shukla was proposed to be filled up by the promotion of the respondent no. 5 Hari Shanker Prasad Verma treating him to be the senior most class IV employee in the Institution. 5. Needless to point out that such promotions are permissible under the provisions of Regulation 2 of Chapter III of the regulations framed under the U.P. Intermediate Education Act, 1921 which provides that 50% posts have to be filled by way of promotion from Class IV employees. 6. The petitioner, contending that he was senior to the respondent no. 5. Needless to point out that such promotions are permissible under the provisions of Regulation 2 of Chapter III of the regulations framed under the U.P. Intermediate Education Act, 1921 which provides that 50% posts have to be filled by way of promotion from Class IV employees. 6. The petitioner, contending that he was senior to the respondent no. 5, made representations and on failure to get any response he filed Writ Petition No. 29069 of 2007 which was disposed of on 4th July 2007 calling upon the District Inspector of Schools to pass an appropriate order. 7. Learned counsel for the petitioner submits that no order was passed by the District Inspector of Schools in spite of repeated requests and on the contrary the impugned order dated 8th June 2007 was issued granting financial sanction and approval to the selection and promotion of respondent no. 5 as Assistant Clerk in the Institution. 8. Learned counsel contends that firstly the aforesaid selection by the Authorized Controller is in violation of the aforesaid regulations and founded on an erroneous assumption of fact inasmuch as it was the petitioner who was the senior most class IV employee and not the respondent no. 5. Secondly, there is no consideration by the Prabandh Sanchalak or by the management of the candidature of the petitioner. Thirdly, the order impugned dated 8th June 2007 was passed without giving any notice or opportunity of hearing to the petitioner and without taking notice of the representation of the petitioner. It is, therefore, submitted that on all three counts the impugned order deserves to be set aside. 9. The respondents no. 4 and 5 have filed a counter affidavit and so has the respondent no. 2. The District Inspector of Schools has taken a stand that since no proposal was forwarded by the committee of management in relation to the claim of the petitioner there was no option but to approve the selection and appointment of the respondent no. 5. The Principal of the Institution has filed a counter affidavit and the stand taken by the respondent no. 5 namely that out of the said four posts one of the posts had to be offered to a reserved category candidate and therefore even otherwise the promotion of the respondent no. 5 who belongs to the other backward category is justified under the reservation rules. 10. 5 namely that out of the said four posts one of the posts had to be offered to a reserved category candidate and therefore even otherwise the promotion of the respondent no. 5 who belongs to the other backward category is justified under the reservation rules. 10. It is further submitted on behalf of the said respondents that so far as the claim of the petitioner is concerned it was for the management to have considered the same and the said respondents are nowhere responsible for the non-consideration of the claim of the petitioner. It is further submitted that the respondent no. 5 has also functioned for the past more than four years and hence the claim of the petitioner can be considered against any other post which might be available in the Institution. 11. Having considered the submissions and the relevant provisions that are applicable as well as the affidavits exchanged between the parties, the Rule as applicable in matters of promotion and indicated hereinabove categorically provide that 50% of the posts have to be filled by way of promotion from amongst Class IV employees according to seniority provided they have completed five years of substantive service and their work and conduct is even otherwise satisfactory. The consideration therefore has to be made from amongst the candidates available for promotion on the post in question. 12. In the instant case the claim of the petitioner has nowhere been considered by the management and against record the respondent no. 5 has been proposed on the ground that he is the senior most candidate amongst the Class IV employees. In my opinion, the aforesaid consideration is erroneous inasmuch as admittedly the petitioner is senior to the respondent no. 5. Accordingly, the proposal made by the Prabandh Sanchalak is contrary to rules and against the facts on record. 13. Apart from this the petitioner had approached this Court and moved a representation before the District Inspector of Schools for the consideration of his claim. The District Inspector of Schools therefore is not right in contending in the counter affidavit that since the management did not make a proposal, the District Inspector of Schools was not obliged to consider the claim of the petitioner. The District Inspector of Schools therefore is not right in contending in the counter affidavit that since the management did not make a proposal, the District Inspector of Schools was not obliged to consider the claim of the petitioner. The District Inspector of Schools before passing the order dated 8th June 2007 was under an obligation to consider the claim of the petitioner keeping in view the provisions contained in Chapter III Regulation 2 and the representation made by the petitioner. 14. The decision of this Court may have been rendered a few days thereafter yet in spite of the aforesaid directions the District Inspector of Schools has failed to take into consideration the claim of the petitioner and therefore the matter deserves to be reconsidered by the appropriate authority. 15. The third ground taken by the petitioner that the order dated 8th June 2007 has been passed in violation of principles of natural justice need not gone into in view of the conclusions drawn hereinabove that even otherwise the proposal and the approval both are vitiated in law. Accordingly, the order dated 8th June 2007 as well as the proposal dated 4th December, 2006 made in favour of the respondent no. 5 are hereby quashed. 16. The matter is remitted back to the Regional Level Committee headed by the Joint Director of Education of the region concerned who in terms of the Government Order dated 19.12.2000 shall proceed to call for comments from the management of the Institution in relation to the claim of the petitioner vis-a-vis the respondent no. 5. The Regional Level Committee shall after considering the said comments and after giving an opportunity of hearing to the petitioner and the respondent no. 5 shall proceed to pass an appropriate order in relation to the claim of promotion by the petitioner in view of the observations made hereinabove. 17. Needless to say that the stand taken in the counter affidavit by the respondent no. 5 or the Principal of the Institution so far as reservation is concerned is not available in view of the law laid down by the Full Bench of this Court in the case of Heera Lal Vs. State of U.P. and others, reported in 2010 (6) ADJ Pg. 1 as the number of posts in the source of recruitment by promotion under rules is only two. 18. State of U.P. and others, reported in 2010 (6) ADJ Pg. 1 as the number of posts in the source of recruitment by promotion under rules is only two. 18. The claim of promotion of the petitioner and the respondent no. 5 shall be considered keeping in view the vacancies available in the Institution. 19. The writ petition is allowed subject to the directions contained hereinabove. Petition Allowed.