JUDGMENT Janardan Sahal, J.
1. In Sardar Patel Inter College, Slkaro, Koraon, district Allahabad, there are five sanctioned posts of Lecturers one each in the subjects of History, Hindi, Sanskrit, Sociology and Economics. The petitioner was appointed as L.T. Grade teacher on 8.7.1973. He obtained his Masters Degree in History in 1996. A vacancy on the post of Lecturer in History arose on the retirement of Doodh Nath Verma. He retired on 30.6.2000 and as such the substantive vacancy arose on 1.7.2000. The petitioner alleges that he is the seniormost teacher in the L. T. grade in the institution, qualified to teach History and was entitled to promotion under the 50% quota for promotion. His grievance is that the 4th respondent Awadhesh Kumar Singh who is a Lecturer in another college namely the Puwayan Inter College, Puwayan, Shahjahanpur is being transferred to Sardar Patel Inter College, Sikaro, Koraon, district Allahabad to fill up the post of Lecturer History which is illegal as the post has to be filled up under the promotion quota and also because the respondent No. 4 is the son-in-law of the Manager of the institution and the transfer is violative of Articles 14 and 16 of the Constitution of India.
2. The first question that falls for determination in this case, therefore, is whether the post is to be filled up under the promotion quota or by direct recruitment. The petitioner's case is that out of five sanctioned posts of Lecturers in the College, one post viz., that of Lecturer Sociology held by Dinesh Pal Singh has been filled up by direct recruitment and that two posts viz., that of Lecturers in Economics and Sanskrit have been filled up by regularisatlon of the ad hoc promotees Shivanand Mishra and Saliqram Upadhyaya respectively and are held by them. According to the petitioner, Harish Chand Singh, Lecturer in Hindi in the institution was to retire on 30.6.2001 and thus two posts of Lecturers one of which in History had already fallen vacant and the other in Hindi which was due to fall vacant on the retirement on 30.6.2001 of Harish Chand Singh were available for selection and one of these posts has to be filled up by promotion. It is submitted that the petitioner being the seniormost teacher in the institution the vacancy on the post of History Lecturer is required to be filled up by promotion and the petitioner has a fundamental right to be considered therefore.
3. Separate counter-affidavits in this case have been filed by the District Inspector of Schools, and on behalf of the Committee of Management and by Awadhesh Kumar Singh, the 4th respondent who is being transferred to the institution where the petitioner is working. The case of the respondents is that three posts of Lecturers have been filled up by promotion and the vacancy on the post of History Lecturer is to be filled up by direct recruitment and as such the petitioner has no claim to that post.
4. I have heard Sri R. K. Ojha, counsel for the petitioner. Dr. R. G. Padia appearing for respondent No. 4, and the counsel for respondent No. 3 Committee of Management and standing counsel for respondent Nos. 1 and 2.
5. Rule 10 of the U. P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the 1998 Rules), provides for the posts of lecturers, a 50% quota for direct recruitment and a 50% promotion quota, and if in calculating the respective percentages of posts there is a fraction, one more post has to be filled up by promotion. Thus, there being five posts of Lecturers three are required to be filled up by promotion. The relevant recruitment year in this case is 2000-01 (from 1.7.2000 to 30.6.2001). In this year there arose only a single vacancy on 1.7.2000 that was caused on account of retirement of Doodh Nath Verma Lecturer History who had retired on 30.6.2000. The other vacancy on the post of Lecturer Hindi was to arise on the retirement on 30.6.2001 of Harish Chand Singh. This vacancy would have arisen on 1.7.2001 falling in the recruitment year 2001-02. However, Rule 11 (2) (a) of the aforesaid Rules provides that vacancies arising due to the retirement on the last date of the year of recruitment shall also be counted for making the selection. Thus, selection for the post of Hindi Lecturer was also required to be made in the recruitment year 2000-01.
6. In the counter-affidavit filed by the Committee of Management it is stated in paragraph No. 10 that out of five posts of Lecturers 3 Lecturers viz., of Hindi, Economics and Sanskrit were working on promotion. In the counter-affidavit filed by respondent Nos. 1 and 2 It is stated in paragraph 6 that three Lecturers are already working under the promotional quota and that the post in question was to be filled in by direct recruitment. In paragraph 4 of the rejoinder-affidavit in reply to the averments made in paragraph No. 6 of the counter-affidavit of respondent Nos. 1 and 2 there is no denial of the fact that three of the lecturers in the institution were working under the promotion quota. In paragraph 7 of that rejoinder-affidavit it is rather stated that "out of 5 posts, on 1st July, 2000 two posts fallen vacant and out of three posts one has already been filled up by direct recruitment and two has been filled up by promotion, therefore, two posts are also vacant and out of two posts one has to be filled up by promotion and another by direct recruitment....."
7. In the written argument filed on behalf of the petitioner also it has not been disputed that Lecturers in Sanskrit, Economics and Hindi were holding posts under the promotion quota. What is contended is that the post of Hindi Lecturer would have also to be filled up in the same recruitment year because of Rule 11 (2) (a) under which the vacancy arising on a post to fall vacant on the last date of the recruitment year is also to be counted and that there were thus two vacancies. In the written arguments the claim that the post of History Lecturer is to be filled up from the promotion quota is being made not on the ground that when the vacancy occurred on the post of History Lecturer it was the turn of the promotion quota but on the ground to quote therefrom "if two posts are vacant and one is to be filled up by promotion and another by direct recruitment then out of the aforesaid two posts one post to be filled up by promotion on which senior most teacher is (available) eligible for promotion". Indeed no submission was made in the arguments before the Court that Lecturers in Hindi, Economics and Sanskrit were not holding post under the promotion quota. For the purpose of decision of this writ petition, therefore, I am taking it that when this petition was filed three of the posts, viz., those in Hindi, Economics and Sanskrit were occupied by Incumbents under the promotion quota, one namely that of Lecturer History was vacant and one namely that of Sociology was occupied by a direct recruit. The Lecturer in Hindi, Harlsh Chandra Singh was to retire on 30.6.2000 for which post selection was to be made in the same recruitment year and therefore if Harish Chandra Singh is excluded there remained only 2 lecturers working in the promotion quota for the purposes of determining the quota from which the vacancy was to be filled up. Calculated on this basis, of the two posts of lecturers for which selection was to be made in the recruitment year 2000-2001 one was to be filled by direct recruitment and the other by promotion.
8. Although Rule 10 provides for a 50% quota each for direct recruitment and promotion but where there are several vacancies to be filled up in one recruitment year it is silent on the point as to which of the vacancies is to be filled up by promotion and which by direct recruitment.
9. The submission of the learned counsel for the petitioner is that when two posts of lecturers in different subjects are available for which selection is to be made in the same recruitment year and one of the two posts is to be filled up by promotion, it is the post of the subject in which the seniormost teacher is working which should be filled up by promotion. On this basis it is claimed that the petitioner being the senior-most teacher in the institution, the post of History Lecturer ought to have been filled up by promotion.
10. The submission of Dr. R. G. Padia counsel for respondent No. 4 is two fold, first, that the post does not fall in the promotion quota but was to be filled up by direct recruitment and second even otherwise choice should be left to the Committee of Management to name the post which is to be filled up by promotion and which by direct recruitment. If this latter submission of Dr. R. G. Padia is accepted It would give a free hand to the committee of management to manipulate the situation in favour of a candidate in "'horn the management is interested. Dr. R. G. Padia, learned counsel for respondent No. 4 relied upon B. P. Tripathi v. Stale of U. P. and Ors., 1985 UPLBEC 669 and Pati Ram Pal v. District Inspector of Schools, 1993 UPLBEC 319, in support of his submission that the choice of filling the post in a particular subject is to be left to the management according to the requirement in a particular subject. Both these cases relate to appointment to the post of L.T. grade teacher. The decisions have no application to the case of appointment to a lecturer because unlike L.T. grade posts the posts of Lecturers are sanctioned subject-wise and it is the post of the Lecturer of the subject in which the vacancy has occurred which has to be filled up. The question is not of the subject in which the post has to be filled up but the quota from which it is to be filled up.
11. The proper method in such a case where the promotion quota and quota for direct recruitment is equal in the absence of any rule is to adopt a system of rostering that is filling up of one post by direct recruitment and the next by promotion and so on turn by turn. The vacancies as they occur would be filled up according to the turn of the quota of direct recruitment or promotion. This would obviate any manipulation by the management. If this system is adopted there being three persons working in the promotion quota on the date the vacancy on the post of Lecturer History arose, the post was required to be filled up by direct recruitment. The petitioner as such has no claim for the post and it could be filled up by the transfer of respondent No. 4 against the quota of direct recruitment. The petitioner's case that the post of Lecturer History was demarcated for promotion as the outgoing teacher on that post Doodnath Verma was working on promotion has no force. Where quotas for promotion are provided on the total sanctioned strength of lecturers, no demarcation for any post can be made on the basis that the previous incumbent was occupying it on promotion or direct recruitment because the vacancy has to be filled up by rostering the two quotas.
12. Under Rule 14 of the 1998 Rules upon which reliance has been placed by the petitioner's counsel it is the seniority of the person in the subject that has to be taken into account. Rule 14 of the 1998 Rules lays down the criteria for filling up the posts under the promotion quota. The criteria for promotion is seniority subject to rejection of the unfit. The Rules do not provide for allocation of posts in the promotion quota or direct recruitment quota on the basis of seniority.
13. It was then submitted by the learned counsel for the petitioner that transfer is a mode of appointment as envisaged by Section 16 of the U. P. Secondary Education Services Selection Board Act. The second proviso of that section permits appointment by transfer in accordance with the regulations made under Clause (c) of Sub-section (2) of Section 16G of the Intermediate Education Act. The 4th respondent is being transferred under the Regulations made under this provision. It is submitted that under Schedule II of the Intermediate Education Act a list of relatives for the purpose of Section 16GG has been given and if a person is related to the Manager or Principal in the manner given in the Schedule he cannot be appointed. It is submitted that the respondent No. 4 is the son-in-law of the Manager of the institution and comes within the prohibited degrees of relationship under Schedule II of the U. P. Intermediate Education Act. Section 16GG of the U. P. Intermediate Education Act provides in respect of teachers appointed on ad hoc basis against a clear vacancy who fall within the eligibility criteria provided therein that they shall be deemed to have been appointed in substantive capacity. However, no entitlement to substantive appointment is available to a teacher related to any member of the Committee of Management in the manner given in Schedule II. The daughter's husband no doubt is covered within the prohibited degrees of relationship but the embargo is limited to substantive appointment made under Section 16GG. A transfer of a teacher, in this case the respondent No. 4, who has been appointed on the basis of regular selection by the U. P. Secondary Education Service Commission is not an appointment under Section 16GG of the U. P. Intermediate Education Act but is made in accordance with the Regulations made under Section 16G (2) (c). The Schedule is therefore, not attracted,
14. It is also submitted that the transfer of a relative would be violative of Articles 14 and 16 of the Constitution of India. The purpose of prohibiting a relative from being given substantive appointment under Section 16GG was obviously to avoid the relatives of the Manager or the Principal who may have been given ad hoc appointment on the basis of favouritism from getting a substantive appointment. Where however a candidate has been duly appointed after selection by Secondary Education Service Commission, there can be no question of favouritism in his appointment. For this reason even if a relative of the Manager who has been duly appointed in another institution is transferred to the institution where his relative is working as Manager he would be getting no undue benefit. Such a transfer does not frustrate any norm of appointment provided under any provision. The plea of Articles 14 and 16 therefore also fails.
15. Dr. R. G. Padia, learned counsel for the respondent No. 4 had raised an objection that the writ petition is not maintainable as no cause of action has yet arisen inasmuch as the statutory committee has not passed any final order regarding the transfer of respondent No. 4. From the facts brought on record, it is clear that resolutions have been passed by the committee of management of the Institution where respondent No. 4 is working as well as by the Committee of Management of the institution where respondent No. 4 is to be transferred and only the statutory committee has to pass the final order regarding the transfer. The process for transferring respondent No. 4 has thus already started and is already a long way through and there is a threat to the petitioner's right as he claims that the post is to be filled by promotion. It is therefore, not correct to say that the cause of action has not yet arisen. A writ petition can be filed of a right is threatened and I do not propose to dismiss the writ petition on that ground. However, as I have held on merits that the post is to be filled by direct recruitment, the petitioner has no case. In the result the writ petition is dismissed.