Sudhir Agarwal, J.@mdashHeard learned Counsel for the parties.
2. The Petitioner Krishna Murari Yadav by means of this writ petition has assailed the order dated 9.10.2007, annexure-6 to the writ petition, whereby the District Inspector of Schools has directed the management of Shiv Harsh Kisan Inter College, Basti to appoint Respondent No. 5 on the post of Lecturer(Economics) as a direct recruitment in order to absorb him on the said post as a subject expert referring to the Government Order dated 29.12.2006. It is admitted that there were 14 posts of Lecturers in the College. Out of which 4 posts filled in by direct recruitment and 3 by promotion in February 2007. One Ram Chandra Shukla, Lecturer in Economics retired on 30.6.2007 leaving the post of Lecturer as 3 by direct recruitment and 3 promotees. Since the vacancies in promotion quota were not complete, it appears that one Ram Mangal Lal, senior most L.T. grade teacher sought promotion on the post of Lecturer (Mathematics) and his matter for approval was pending. Besides one Durga Prasad Shukla, also claimed for promotion on the post of Lecturer (Economics) being third in seniority list, since the second person namely Gopalji Srivastava, Assistant Teacher, L.T. grade was not qualified to be promoted on the post of Lecturer as he did not possess requisite qualification. The Petitioner also applied for promotion to the post of Lecturer (Economics). The management instead of considering the claim of Durga Prasad Shukla and Petitioner for promotion to the post of Lecturer (Economics), it appears informed the D.I.O.S. that this vacancy can be filled in by direct recruitment by letter dated 2.2.2007. Pursuant thereto the District Inspector of Schools on 10.7.2007 issued the impugned order directing for appointment of the Respondent No. 5 on the post in question.
3. The Respondent No. 5 admittedly has not been selected and appointed in the post in question since the post was never advertised, with reference to the institution in question. The vacancies to be filled in by promotion on the post of Lecturer being available, it was not open for management to ignore the claim of eligible persons for promotion to the post in question when eligible and senior persons are available. If senior persons are available in the college the management must have considered them for promotion in order to fill in promotion quota.
4. Unless one is not found suitable otherwise for promotion and only thereafter it could have proceeded for direct recruitment. In the case in hand, it is admitted that a large number of vacancies to be filled in by promotion were available even though the Respondents acted illegally and proceeded to fill in the post in question by direct recruitment, which is impermissible.
5. In the circumstances of the case, the writ petition is allowed. The Respondents are directed to consider the claim of senior most Assistant Teacher, (L.T. grade) eligible for promotion to the post in question i.e. Lecturer(Economics) in accordance with law and pass appropriate order within two months from the date of production of certified copy of a order before him. However, this order shall not preclude Respondent No. 7 for absorption in some other institution in accordance with law.
