V.K. Shukla, J.— In the district of Gorakhpur there is an institution known as Rashtriya Kanya Inter College, Grakhpur which is duly recognised and aided institution under U.P. Intermediate Education Act, 1921. Institution in question is in grant in aid list of the State Government and the provision of U.P. Act No. 24 of 1971 are fully applicable to the said institution. Service condition of Class III employees are governed under relevant provision of Regulation-2 and Regulation 101 to 107 of Chapter-Ill of U.P. Act No. 2 of U.P. Intermediate Education Act, 1921. In the aforesaid institution, three posts of Class III are duly sanctioned, which is inclusive of one post of Head clerk and two posts of Assistant clerk. One K.K. Srivastava has been working as Assistant Clerk, retired on 31.1.2006 and another Assistant clerk namely Shesh Nath Pandey retired on 31.12.2009 thus giving rise to two substantive vacancy. Petitioner of Civil Misc. Writ Petition No. 10127 of 2012 namely Virendra Singh has contended that he was appointed on the post of Chowkidar in the institution concerned on 8.4.2005 and further submits that he has completed his five years service as Class IV employee on 10.4.2010. Petitioner submits that one post of clerk out of the two vacant posts was liable to be filled by way of promotion as per provision of Regulation-2 of Chapter-III framed under Section 16-G of U.P. Intermediate Education Act, 1921. It appears that Authorised Controller, who had been functioning in the institution concerned intended to fill up the said post by way of direct recruitment and by letter dated 4.6.2011 permission was sought for from Director of Education (Madhyamik), U.P. Lucknow for filing up the aforesaid two posts of Class III employee by way of direct recruitment. Director of Education (Madhyamik), U.P. at Lucknow vide letter dated 29/30.6.2011 accorded permission to fill up said vacancy. Thereafter, Authorised Controller advertised the vacancy in daily newspaper namely "Dainik Aaj" and "Swtantra Chetna" on 2.8.2011. Petitioner of Civil Misc. Director of Education (Madhyamik), U.P. at Lucknow vide letter dated 29/30.6.2011 accorded permission to fill up said vacancy. Thereafter, Authorised Controller advertised the vacancy in daily newspaper namely "Dainik Aaj" and "Swtantra Chetna" on 2.8.2011. Petitioner of Civil Misc. Writ Petition No. 10127 of 2012 after acquiring knowledge of aforesaid advertisement, represented the matter to the District Inspector of Schools requesting therein that one vacant post of clerk should be filled up under promotional quota for which he holds necessary qualification and he deserves promotion, and he further represented the matter before the Director of Education (Madhyamik) U.P. at Lucknow, District Magistrate as well as the Joint Director of Education, Gorakhpur and even filed Civil Misc. Writ Petition No. 48019 of 2011 and this Court asked the District Inspector of Schools to take decision. Thereafter, representation in question has been rejected on 4.8.2011 and against the same Civil Misc. Writ Petition No. 10127 of 2012 has been filed. In .between selection proceedings have been finalised wherein petitioner of Civil Misc. Writ Petition No. 53668 of 2012 and W.P. No. 60137 of 2012 have been selected and Regional Level Committee has also accorded approval to the same. Thereafter, District Inspector of Schools has granted approval to the said selection on 23.12.2011. Petitioner of Civil Misc. Writ Petition No. 53668 of 2012 and W.P. No. 60137 of 2012 on not being ensured salary are before this Court and accordingly all the three writ petitions have been clubbed and taken up together. 2. Sri Dharam Pal Singh, Senior Advocate, assisted by Sri P.K. Dubey, Advocate and S. Niranjan, Advocate appearing for Virendra Singh contended that legitimate right of Virendra Singh to be accorded promotion has been defeated in unlawful manner, whereas on the date of advertisement, he was fully eligible to be considered for promotion, and in view of this to deprive him of promotion is perse bad. It has also been contended that appointment of Mamta Ojha and Anil Yadav is nothing but an out come of fraud and manipulation and their name had been finalised even before selection took place and accordingly writ petition preferred on behalf of Virendra Singh deserves to be allowed and writ petition in respect of Mamta Ojha and Anil Yadav, as their appointment is nothing, but an out come of fraud and manipulation deserves to be dismissed. 3. Countering the said submission, learned Standing Counsel as well as Sri R.K. Ojha, Advocate on the other hand contended that Virendra Singh is not at all liable to be promoted, as on the date of occurrence of vacancy he had not completed five years continuous service and coupled with this selection of Mamta Ojha and Anil Yadav has rightly been made by the Selection Committee and same has even been approved by the Regional Level Committee and as such writ petition of Virendra Singh deserves to be dismissed and writ petition of Mamta Ojha and Anil Yadav deserves to be allowed. 4. First issue to be answered by this Court is as to whether Virendra Singh has been wrongly deprived of his right to be considered for promotion and as to whether he fulfils eligibility criteria or not on the relevant date. 5. It is not disputed that promotion of a class IV employee to class III post in a recognised secondary education institution is to be made in accordance with Regulation 2 Chapter III of the Regulations framed under the Act. Regulation 2 is quoted as under : "2. (1) For the purpose of appointments of clerks and Forth Class employees the minimum educational qualification would be the same as has been fixed from time to time for the equivalent employees of Government Higher Secondary Schools. (2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employees possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to reject of the unfit. If employees possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to reject of the unfit. If any employee is aggrieved by any decision or order of the management committee in this respect then he can made representation against it to the Inspector within two weeks from the date of such decision or order. Inspector on such representation can make such orders as he thinks fit. Decision of the Inspector would be final and promptly executed by the management. Note—In calculating fifty per cent of posts parts less than half would be left and half or more than half post would be deemed as one." 6. Perusal of Regulation-2 of Chapter-Ill of the Regulations would go to show that date of eligibility has not been mentioned therein and in view of this it has been sought to be suggested from the side of petitioner Virendra Singh that on the date when vacancy in question is advertised, same should be relevant date, whereas from the side of Marnta Ojha and Sri Anil Yadav, it has been sought to be contended that date of occurrence of the vacancy, should be the relevant date inasmuch as in case there is no fix date, then it would be given free hand to the Management to proceed as per its whims and fancies. 7. It is true that under Regulation-2 of Chapter-III of U.P. Act No. 2 of 1921 date of eligibility has not been mentioned, and as to whether the date of occurrence of the vacancy has to be accepted as the relevant factor will have to be examined by taking note of other provisions dealing with non teaching staff of the institution. 8. Regulations 101 to 107 of Chapter-III being relevant is extracted below : 101. Appointing authority except with prior approval of Inspector shall not fill any vacancy of non-teaching post of any recognised aided institution. Provided that filling of the vacancy on the post of Jamadar may be granted by the Inspector 102. 8. Regulations 101 to 107 of Chapter-III being relevant is extracted below : 101. Appointing authority except with prior approval of Inspector shall not fill any vacancy of non-teaching post of any recognised aided institution. Provided that filling of the vacancy on the post of Jamadar may be granted by the Inspector 102. Information regarding vacancy a result of retirement of any employee holding a non teaching post in any recognised, aided institution shall be given before three months of his date of retirement and information about any vacancy falling due to death, resignation or for any other reasons shall be intimated to the Inspector by the appointing authority within seven days of the date of such occurrence 103. Notwithstanding anything contained in these regulations, where any teacher or employee of ministerial grade of any recognised, aided institution, who is appointed accordingly with prescribed procedure, dies during service period, then one member of his family, who is not less than eighteen years in age, can be appointed on the post of teacher in trained graduate grade or on any ministerial post, if he possesses prescribed requisite academic qualifications, training eligibilities, if any, and he is otherwise fit for appointment. Provided that anything contained in this regulation would not apply to any recognised aided institution established and administered by any minority class. 104. Management of any recognised, aided institution within seven days of the date of death shall present a report to the Inspector about the members of the family of deceased employee, in which particulars of name of the deceased employee, post held, pay scale, date of appointment, date of death, name of the appointing institution and names of his family members, their academic and training eligibility, if any, and age shall also be given. Inspector shall make entries of particulars of the deceased in the register maintain by himself. 105. Any member of the family of the deceased employee referred to in Regulation 103 shall apply? to the Inspector for appointment as teacher in any trained graduate grade or in any clerical grade, as the case may be. Inspector shall make entries of particulars of the deceased in the register maintain by himself. 105. Any member of the family of the deceased employee referred to in Regulation 103 shall apply? to the Inspector for appointment as teacher in any trained graduate grade or in any clerical grade, as the case may be. Application would be considered by the Committee and if the Committee recommends his appointment, the Inspector shall send the application to the Management Committee of that recognised, aided institution in which the applicant is to be appointed to issue the appointment letter as per Regulations 106 and 107. The following shall be included in the Committee. The Committee shall comprise: 1. Inspector---------------Chairman 2. Accounts Officer in D.I.O.S. Office-------------------------Member. 3. District Basic Education Officer— ---------------------------------Member. 106. The appointment of the member of the family of the deceased employee as per his academic eligibilities shall be done in trained graduate grade or on any clerical post so far as possible in that institution in which the deceased employee was in service. If there is no vacancy in trained graduate grade for teacher or in ministerial cadre in such institution, he shall be appointed in any other recognised, aided institution of the district where such vacancy lies. Provided that if for the same time being no vacancy exists in any recognised aided institution of the district then in the institution where deceased was serving at the time of his death appointment against any surplus post of teacher in trained graduate grade or clerical post of class four shall immediately be made. Such surplus post shall be deemed to be created for this purpose and shall be continued until any vacancy in that institution or in any other recognised, aided institution of the district is available and in this case service rendered by such surplus post holder shall be counted for the purpose of pay fixation and retirement benefits. 107. Management of the recognised, aided institution to which application is sent by Inspector for issuance of appointment letter, shall issue appointment letter informing the Inspector within a period of one month from the date of receipt of the application. 9. 107. Management of the recognised, aided institution to which application is sent by Inspector for issuance of appointment letter, shall issue appointment letter informing the Inspector within a period of one month from the date of receipt of the application. 9. Regulation 101 of Chapter-III clearly provides that without prior approval of the District Inspector of Schools, no non teaching post shall be filled up and further rider has also been imposed that District Inspector of Schools would give details of the entire vacancy so available to the Director of Education, alongwith students strength and justification for filling the said vacancy and after getting permission from the Director of Education, District Inspector of Schools would .give permission to fill up the vacancy and then vacancy would be filled up. Regulation 102 of Chapter-III clearly provides that on any vacancy occurring on account of attaining the age of superannuation, said vacancy should be informed to the District Inspector of Schools prior to three months and qua any other vacancy occurring on account of death, resignation or otherwise, said vacancy in question be informed to the District Inspector of Schools within 7 days by appointing authority. Regulation-103 of Chapter-III, thereafter, talks of providing compassionate appointment to an incumbent whose parents have died in harness and thereafter Regulations 104, 105, 106 talks of offering compassionate appointment to an incumbent against available vacancy and if vacancy in question is not available then appointment to be made on supernumerary basis. 10. Regulation 102 of Chapter-III is clear and specific that vacancy in question has to be intimated to the District Inspector of Schools in order to enable the District Inspector of Schools to be aware of the existence of vacancy so that incumbents who are to be offered appointment on compassionate basis are offered appointment accordingly and the incumbent who have been working on supernumerary basis if they are to be adjusted in the institution concerned then they be adjusted accordingly. It is at this point of time determination is made, as to whether vacancy in question to be filled up by way of promotion or it has to be filled up from amongst compassionate appointee, or it has to be filled up from open market, after taking due permission from District Inspector of Schools, as is envisaged under Regulation 101 of Chapter-Ill. Vacancies that are to be filled up by way of promotion, they cannot be filled up either by way of direct recruitment or by way of compassionate appointment. Apex Court in the case of Hiramanv. State of U.P. and others, 1997(3) UPLBEC 1631 : AIR 1997 SC 3288 , has disapproved the offer of compassionate appointment qua post reserved for promotion. 11. In view of this date of the occurrence of vacancy has relevance under Regulation 102 of Chapter-III inasmuch as only in the event post in question would not fall under promotional quota, then same can be filled up on compassionate basis or by way of direct recruitment under Regulation 101 or Regulations 103 to 106 of Chapter-III. Once occurrence of the vacancy is the relevant factor and same has to be fixed point, then provision of Regulation-2 of Chapter-III of the Regulation has to be seen in reference of the vacancy, inasmuch as in case no fixed point is provided then same would give free hand to the Management to alter date in order to determine 50% of the quota. In order to rule out any arbitrariness on the part of the Management, Regulation-2 of Chapter-III of Regulation will have to be read alongwith Regulation 102 of U.P. Act No. 2 of 1921 and as per the same on the date of occurrence of the vacancy on computation being made, if it is found that post in question falls within 50% quota of promotion, then same be filled by way of promotion, and in case on the date of occurrence of the vacancy incumbent is not eligible, under Regulation-2 of Chapter-III, then vacancy in question is open to be filled up from among incumbent of Dying in harness category, and in case no one is found in Dying in harness category or no incumbent from dying in harness category is working on supernumerary post, then post would be filled up from open market i.e. by way of direct recruitment. Reading of rule in this fashion would completely rule out uncertainty \, as the zone of consideration or the field of eligibility of suitable and eligible candidates cannot be permitted to be enlarged at the whims of Committee of Management or get enlarged on account of its failure, to take promotional exercise or on account of non sending of candidate from compassionate category by educational authorities. 12. In view of this, once occurrence of vacancy has a role to play under Regulation 102 of Chapter-II of U.P. Act No. 2 of 1921, then in such a situation eligibility of candidate under Regulation-2 Chapter-III has to be seen in reference to the context of date of occurrence of the vacancy and not the date when the Management has proceeded to fill up the post. 13. Apex Court, in the case of P. Mohan Pillai v. State of Kerla, 2007(9) SCC 497 paragraph 11 has taken the view that it is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedure as were prevailing on the date of vacancy should ordinarily be followed. 14. In view of this, opinion formed by the District Inspector of Schools holding that Virendra Singh was not eligible to be accorded promotion, cannot be faulted. 15. The qualification must be fixed at that time. The eligibility criteria as also the procedure as were prevailing on the date of vacancy should ordinarily be followed. 14. In view of this, opinion formed by the District Inspector of Schools holding that Virendra Singh was not eligible to be accorded promotion, cannot be faulted. 15. This Court in normal course of business would have directed for ensuring payment of salary to Mamta Ojha and Anil Yadav, but serious allegations have been levelled that P.K. Dwivedi who was Authorised Controller and holding charge of District Inspector of Schools has ma nipulated entire selection and he was also one of the member of the Regional Level Committee, selection in question has been made on extraneous consideration as Mamta Ojha is daughter-in-law of Shiva Kant Ojha, leader of Madhyamik Shiksha Sangh and Anil Kumar Yadav is relative of Phool Chandra Yadav Camp clerk in the office of District Inspector of Schools, and interview in the present case has been shown on 25.9.2011 and one day before complaint has been been made to the Commissioner on 24.9.2011, that selection is pre fixed, and Mamta Ojha and Anil Yadav are to be appointed. 16. In view of peculiar facts of the case, which has so emerged Director of Education (Madhyamik), U.P. Lucknow is directed to get an inquiry conducted into the matter in reference to appointment of Mamta Ojha and Anil Singh and if it is found that appointment has been validly made and transparency has been maintained, then requisite order be passed for ensuring payment of salary. 17. With these observations, writ petitions are disposed of. _____________