V.M.SAHAI,J. - (1.) THE petitioner who is working as Head of History Department since 1974 has filed this petition for direction to the respondents to promote him as Principal with effect from 22 -8 -1997 the date on which juniors to him have been appointed as Principal, Degree College. He was appointed on 30 -8 -1972 as Lecturer, History Department, Government Raza Post Graduate College, Rampur. On 22 -11 -1974 he was promoted as Head of History Department in Government Degree College, Lambgaon, District Tehri Garhwal. He joined on 30 -11 -1974. The State Government also issued a notification on 18 -3 -1975 to the effect that the petitioner alongwith others had been promoted as Head of History Department on ad -hoc basis. On 3 -9 -1976 he was transferred as Head of Department, Degree College, Mahmoodabad, Sitapur. He was transferred in May, 1981 to Government Degree College, Chakia, Varanasi as Head of History Department where he jained on 15 -9 -1982. He was promoted as Principal, Government Degree College, Chakia, Varanasi for a short period, which was an officiating arrangement and came to an end after the regular Principal joined. The petitioner was again transferred in May, 1985 to Government Post Graduate College, Kotdwar, Pauri Garhwal where he joined on 14 -6 -1985 as Head of History Department. He was again transferred on 30 -6 -1987 to Government Raza Post Graduate College, Rampur. From 30 -1 -1990 to 20 -7 -1990 the petitioner worked as Head of History Department in Government Degree College, Unchahar, Rae Bareli, but was transferred back to Government Raza Post Graduate College, Rampur where he worked till 7 -7 -1997. In the rejoinder -affidavit filed by the petitioner it has been mentioned that the petitioner is working as Head of History Department in Government Girls, Degree College, Rajajaji Puram, Lucknow.
(2.) SRI M.D. Singh learned Counsel for the petitioner has urged that the petitioner's service was governed by the U.P. Higher Education (Group -A) Service Rules, 1985 (in brief Rules). Rule 4 provided the cadre and Rule 5 provided the source of recruitment to various categories of posts. He has urged that the mode of recruitment of Principal of Degree Colleges has been provided in Rule 5 Category -III and if the vacancies could not be filled from the candidates mentioned in Rule 4 Category -IV then the post of Principal was required to be filled from Category -V of Rule 4 read with proviso to Category -III of Rules 5 of the Rules. Therefore, the petitioner was entitled to be promoted as Principal, Government Degree College and the respondents have committed an error in promoting juniors to the petitioner who were working as Lecturers whereas the petitioner was working as Head of Department. On the other hand, Sri G.C. Upadhyaya learned Standing Counsel has urged that the promotions to the post of Principal, Government Degree College are made on the basis of seniority and merits subject to rejection of unfit. In the seniority list prepared by the Government, the petitioner had been placed at Serial No. 216 whereas Sri Shiv Prasad Gupta, Lecturer (Botany) has been placed at Serial No. 176. Therefore, the claim of the petitioner that juniors to him had been promoted is liable to be rejected. He further urged that a composite seniority list is prepared by the State Government of all the Lecturers working in the same pay -scale on the basis of seniority. Promotion is made from the seniority list on the basis of seniority subject to rejection of unfit. However, this policy has been changed and notification dated 23 -2 -1996 has been issued by the Government by which U.P. Sarkari Sewak (Padonnati Dwara Bharti Ke Liye Mandand) (Pratham Sanshodhan) Niyamawali, 1996 amending Uttar Pradesh Sarkari Sewak (Padonnati Dwara Bharti Ke Liye Mandand) Niyamawali, 1994 has been framed wherein procedure for promotion has been laid down that promotion would be made on the basis of merit. It has further been urged that the petitioner has not impleaded juniors to him against whom the petitioner is claiming that he is senior and is entitled for promotion. It has lastly been urged that the Government prepares a composite seniority list of all the Lecturers working in the State and if in any particular college, a lecturer is senior most, then he is promoted as Head of the Department of that particular subject in which he is the senior most. But the promotion to the post of Principals are made strictly on merit from the seniority list prepared by the Government.
(3.) THE petitioner was appointed as Lecturer on 30 -8 -1972 in History Department in Government Raza Post Graduate, Rampur. He was promoted on ad -hoc basis as Head of History Department on 22 -11 -1974 on a newly created post in Government Degree College, Lambgaon, District Tehri Garhwal. It is not disputed that since 1974 till date, the petitioner has been working as Head of History Department in Government Degree Colleges. Nor there is any dispute that some of the Lecturers have been appointed as Principal. The issue that arises thereof is whether promotion of Lecturer as Principal without considering petitioner who was head of the department was in accordance with law? The State Government, in the year 1985, framed Uttar Pradesh Higher Education (Group -A) Service Rules, 1985 which was published in the extraordinary Gazette on 2 -7 -1985. The rules govern the services of the petitioner and other Lecturers. To appreciate the controversy involved in this petition, it is necessary to extract Rules 4 and 5 of the Rules as below : 4. (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 : Category, Designation of Posts, I, Director of Higher Education, 1 II, (a) Principal of Post -graduate Colleges , 18 (b) Joint Director of Higher Education , 1 (c) College of Development Officer, 1 III, (a) Principal of Degree Colleges , 30 (b) Regional Higher Education Officer, 2 (c) Deputy Director of Higher Education, 1 IV, (a) Professor, 67 (b) Assistant Professor, 27 (c) Assistant Director of Higher Education, 2 V, Head of Degree Department, 151 VI, (a) Senior Lecturer, 50 (b) Assistant Deputy Director of Higher Education, (c) Lecturer, 900 Note : No new appointments under the designation of Professor, Assistant Professor, Head of Degree Department or Senior Lecturer shall be made hereafter and the existing posts under these designations should they fall vacant, shall be filled by appointment of Lecturers only, who held any of these posts on November 30, 1977 shall continue as such and retain the designation of the post held by them on that date as a personal designation irrespective of their subsequent transfer to a post under a different designation in the same scale of pay. Nothing however, herein contained shall prevent the Governor from reviving the aforesaid designation in respect of future appointees to any of these posts. ;