IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 265 of 2009 Committee of Management. ………. Appellant Versus Director, School Education & others. ..………. Respondents Mr. M.C. Kandpal, Senior Advocate with Mr. Dinesh Chauhan, Advocate for the appellant. Mr. Vinay Kumar, Standing Counsel for respondent Nos. 1 & 2. Mr. Manoj Tiwari, Senior Advocate with Mr. Sandeep Adhikari, Advocate for respondent No. 3. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Servesh Kumar Gupta, J. BARIN GHOSH, C. J. (Oral) The only contention of the appellant survived, after the matter was remanded by the Hon’ble Supreme Court, was that the post in question was reserved for Scheduled Caste. Since no steps were taken to bring on record appropriate documents, including the roster, to suggest that the post in question was reserved for Scheduled Caste, we issued the directions. In terms of such directions, a supplementary affidavit has been filed. With that, certain documents have been brought on record. Those documents do not suggest any convenient mode of ascertaining that the post in question was reserved for Scheduled Caste. The roster has not been produced and, accordingly, there is nothing on record, which would suggest that the post was reserved for Scheduled Caste. 2. In the writ petition, order of the District Education Officer dated 30th May, 2006 was challenged. By that order, it was declared that respondent No. 3 / petitioner is not qualified for promotion to the post in question. In the counter affidavit, amongst others, it was contended that respondent No. 3 / petitioner did not fulfill the qualification for the post in question on the date of vacancy and that the post in question was reserved for Scheduled Caste candidates. By the judgment and order under appeal, the learned Single Judge referred to the applicable rules and the Division Bench judgments of the Court, which clarified that though the 2 qualification mentioned in the rule must be had during the year of recruitment, but, if a person has acquired qualification before the date of taking steps to fill-up the post, that will do. There was no dispute that, as on the date of promotion, respondent No. 3 / petitioner did have qualification for being promoted. The learned Single Judge, in the judgment and order under appeal, rejected the contention that the post was reserved for Scheduled Caste candidates, on the ground that the same was not indicated in the order dated 30th May, 2006 passed by the District Education Officer. 3. We were not persuaded to take a view contrary to the view expressed by the Division Bench of this Court that a person, having qualification prescribed in the rules prior to the date of supplying the vacancy and offering himself as a candidate for consideration for supplying vacancy, cannot be considered only on the ground that he did not acquire qualification on the date the vacancy occurred. The applicable rule contained in the Regulation 6(1) of Chapter II, framed under the U.P. Intermediate Education Act, 1921, speaks about minimum 5 years’ continuous substantive service on the date of occurrence of the vacancy. To this, there appears to be no leverage. There is no dispute that respondent No. 3 / petitioner had such experience. The other part of the said regulation talks about the candidate, to be chosen, must possess the prescribed minimum qualification for teaching the subject. The rule does not say that such minimum qualification must be had at or before occurrence of the vacancy. The rule, therefore, makes it amply clear that such qualification may be had even after the vacancy has occurred and, accordingly, if such a person is considered, who acquired such qualification before such consideration takes place, the rule does not stand in the way. 4. In the circumstances, we wanted to give one more opportunity to the appellant to bring on record evidence to suggest that the post in question was reserved for Scheduled Caste candidates. As aforesaid, appellant has failed to bring the same on record. 3 5. We have, accordingly, no other option, but to dismiss the appeal. The appeal is, thus, dismissed. (Servesh Kumar Gupta, J.) (Barin Ghosh, C. J.) 27.05.2011 27.05.2011 G