Salik Ram Misra vs Shambhu Nath Agarwal (deceased) through LRs.and Others

D. S. Sinha, J.—This second appeal under Section 100 of the Code of Civil Procedure, 1908, hereinafter called the Code, is directed against the decree and judgment of the 1st Additional District Judge, Allahabad dated 1st February, 1982 passed in Civil Appeal No. 588 of 1981, Salik Ram v. Shambhoo Nath Agarwal and five others, whereby the decree and judgment dated 31st July, 1981 passed by the 8th Additional Munsif, Allahabad dismissing the suit of the plaintiffappellant has been confirmed.

The plaintiffappellant in situated is the trial court suit for permanent injunction for restraining the defendantrespondents from directly recruiting a Lecturer in Hindi Department of Agarwal Intermediate College, hereinafter referred to as the Institution. Later on, by amendment, relief for declaring the appointment of Han Shankar Misra, respondent No. 6 who was directly recruited, null and void, was also claimed in the suit. The plaintiffappellant claimed that in the vacancy on the post of Lecturer in Hindi created in October, 1977 appointment could be made only through promotion and not by direct recruitment inasmuch as forty percent of the posts of Lecturer were statutorily required to be filled up by promotion. He also claimed that he, being the only candidate having the requisite qualifications, was entitled to be promoted to the post of Lecturer in Hindi against the newly created post.

The claim of the plaintiffappellant was resisted by the defendantrespondents on the ground that the statutory provisions relied upon by the plaintiffappellant had been repealed ; that the relief claimed by the plaintiffappellant had become infructuous consequent upon the appointment of the defendantrespondent No. 6 ; and that the plaintiffappellant was not a tit person to be promoted as his integrity had been found to be doubtful. Besides these pleas, certain other pleas also had been taken on behalf of the defendantrespondents.

The trial court came to the conclusion that the plaintiffappellant was not entitled for promotion to the post of Lecturer in Hindi as his integrity was doubtful. It, therefore, dismissed the suit of the plaintiffappellant.

Aggrieved by the decree and judgment of the trial court, the plaintiffappellant preferred an appeal under Section 96 of the Code. The appellate court has affirmed the decree and judgment of the trial court by means of the impugned decree and judgment on the findings that the plaintiffappellant was not a fit person to be promoted and that the post in question was not available to be filled up by promotion in view of the provisions contained in Regulation 5(2) (a) of the Regulations framed under Sections, 16A, 16B and 16C of the U. P. intermediate Education Act, 1921.

Sri Radhey Shyam, learned counsel appearing for the plaintiffappellant, contends that the view taken by the court below that the post was not available for being filled up by promotion is illegal inasmuch as the quota of forty per cent has to be determined with reference to the post or posts falling vacant.

Regulation 5(2)(a) of the Regulations framed under Sections 16A, 16B, and 16C of the U. P. Intermediate Act, 1921 provides that forty per cent of the total number of sanctioned posts in the Lecturer''s grade or in the L. T. grade shall only be filled by promotion from amongst the teachers working in the institution in the L. T. and C. T. grades respectively and promotions shall be made subject to the availability of posts and eligibility of such teachers for promotion.

A bare reading of the provisions contained in Regulation 5(2)(a) makes it abundantly clear that the quota of forty per cent reserved for promotion from amongst the eligible teachers has to be determined with reference to the total number of sanctioned posts in the Lecturer''s grade or L. T. grade in the institution. The percentage is not to be determined with reference to the number of vacancy occurring at a given time. The view of the court below that the post was not available to be filled up by promotion, therefore, cannot be assailed.

In view of the foregoing discussion, the court is of the opinion that instant appeal has no force and must be dismissed.

In the result, the appeal fails and is hereby dismissed. However, there will be no order as to costs.