G.P.Mathur, J. - (1.) THE petitioner, who is a lecturer in a Government Degree College, has filed this petition under Article 226 of the Constitution praying that a writ of mandamus be issued commanding the respondents to promote him on the post of principal in the pay -scale of Rs. 12,000 -18,300 from the date persons junior to him have been promoted on the said post. The case set up in the writ petition is that the petitioner, who is M.Sc. in Chemistry, was appointed as ad -hoc lecturer in a Government Degree College in the year 1971. His services were regularised on 22.5.1980. A seniority -list of officers of the Higher Education Department, principals and lecturers, was declared on 19.2.1997 in which his name was shown at Sl. No. 52. He made a representation against the said seniority -list on 22.5.2000, which was rejected on 26.4.2001. Three persons, who are at Sl. Nos. 53 to 55 in the seniority -list, were promoted as principal in the pay -scale of Rs. 3700 -5700 (Now revised to Rs. 12000 -18300) on 5.3.1999. Subsequently, a few others, who are junior to the petitioner, were also promoted to the post of principal in the aforesaid scale by the order dated 26.6.2000. The service conditions of the petitioner is governed by the Uttar Pradesh Higher Education (Group A) Service Rules, 1985 (hereinafter referred to as the Rules) wherein criteria for promotion is seniority subject to rejection of unfit. It is asserted that there is no adverse entry in the character -roll of the petitioner and in view of the service rule he is entitled to be promoted on the post of principal of a Government Degree College.
(2.) SRI Sandeep Dixit, learned counsel for the petitioner, has submitted that the petitioner had throughout been awarded good entries in his character -roll. Only once in the year 1992 -93 an entry had been given to him to the effect that "research work is wanting" but the said entry was expunged on 4.12.1996 on a representation made by him. Sri Dixit has further submitted that under Rule 16(1)(b) of the 1985 Rules the promotion on the post of Principal of a Degree College is to be made on the basis of seniority subject to rejection of unfit and as the petitioner has good record of service he ought to have been promoted on the post of principal. It has been urged that the petitioner being at Sl. No. 52 in the seniority -list and some persons junior to him having already been promoted on the post of principal in the years 1999 and 2000, the action of the respondents in not promoting the petitioner on the said post is wholly illegal and is also violative of Article 16 of the Constitution. Before examining the contention raised by the learned counsel for the petitioner, it will be convenient to refer to the relevant provisions of the 1985 Rules, which have been framed by the Governor in exercise of power conferred by proviso to Article 309 of the Constitution. Rules 2, 3(h), 4, 5, 8 and 16(1)(b) are being reproduced below: 2. The Uttar Pradesh Higher Education (Group A) Services is a State Service Comprising Group "A" posts. 3. In these rules, unless there is anything repugnant in the subject or context: (h) 'substantive appointment' means an appointment, not being an ad -hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there are no rules in accordance with the procedure prescribed for the time being by executive instruction issued by the Government;
(3.) (1) The strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time. (2) The strength of the service and of each category of posts therein shall unless orders varying the same are passed under sub -rule (1) be as under: RECRUITMENT to the various categories of posts in the service shall be made from the following sources: 8. A candidate for direct requirement to the posts of Lecturer must possess the qualifications prescribed by the statutes of the various State Universities governed by the U.P. State Universities Act, 1973. 16. (1)(a) .... (b) Recruitment by promotion to the post of Principal Government Postgraduate Colleges, Joint Director of Higher Education and College Development Officers shall be made on the basis of merit and to the post of Principal Degree Colleges, shall be made on the basis of seniority subject to the rejection of the unfit through the Selection Committee comprising: 1. Secretary to Government Personnel Department; 2. Secretary to Government Education Department; 3. Director of Higher Education. Note. - -(1) The Secretary to Government Personnel Department or Secretary to Government Educational Department whoever is senior will be Chairman of the Selection Committee. (2) The appointing authority shall prepare an eligibility list of the candidates arranged in order of seniority and place it before the relevant Selection Committee alongwith their character rolls and such other records pertaining to them, as may be considered proper. (3) The Selection Committee shall consider the cases of candidates on the basis of the records, referred to in sub -rule (2) and if it considers necessary, it may interview the candidates also. (4) The Selection Committee shall prepare a list of selected candidates arranged in order of seniority and forward the some to the appointing authority.;