D.K. Seth, J. - (1.) After being selected and recommended by the U.P. Public Service Commission ('Commission' for short), the petitioner was appointed as Assistant Agronomist in the U.P. Institute of Agriculture , Sciences, Kanpur ('Institute' for short) in Agricultural Service Class-II Section C (Agronomy), (the service' for short). Originally Government Agriculture College, Kanpur was administered by the Government of Uttar Pradesh. The Director of Agriculture was the Head of the Department of the College. The said Agriculture College merged with the Institute after it was established in 1969. The Institute was administered by the Director, a post created for the purpose. There were similar Institutes and Research Stations under the Directorate of Agriculture. Rice Research Station, Majhere, Nainital and Regional Rice Research Station, Faizabad, were also managed by the Government through various Institutes. The said service was a cadre consisting of various posts carrying different designations relating to teaching and Research one and were posted at different Institutes, Colleges and Research Stations, Agriculture Departments of the Government throughout the State. The services were interchangeable and inter-transferable from one establishment to the other and from teaching side to research side. The petitioner's service in the said Cadre was confirmed with effect from 1st January, 1974. In the year 1977, the seniority list was published wherein his name figured in Serial No. 6 whereas that of Dr. R.S. Dixit, Dr. J.P. Agrawal and Dr. Suraj Bhan were shown at serial Nos. 8, 14 and 15 respectively. According to U.P. Agriculture Service Class I Rules, persons working in Class II were entitled to promotion to Class I. Dr. Suraj Bhan, though junior to the petitioner was appointed in Class I service in the post of Agronomist on adhoc basis in contravention of the order dated 30th November, 1971. Though many of the petitioner's juniors were promoted to Class I, despite petitioner's representation, his case was not considered. In 1972, a committee was constituted by the Government for considering the suitability of qualified and senior candidates in the said service for promotion to Class I on the basis of merit cum seniority. The Committee recommended petitioner's name alongwith others for promotion to Class I. By or under order dated 19th September, 1972, the petitioner was promoted as Rice Agronomist, Rice Research Station, Majhera, Nainital. By the said order, the Director of Institute was directed to send the copy of the charge certificate in order to enable the petitioner to join his now post (Annexure 3). Unfortunately, the petitioner, despite his request, was never relieved from his Class II post due to which, in spite of his promotion, he could not join the Class I service. The petitioner made applications on 15th October, 1972 and 19th October, 1972 to the Head of the Department and the Director respectively in spite of which the petitioner was not relieved. The petitioner went on making successive representations on 24th October, 1972, 6th December, 1972, 5th March, 1973 and 1st June, 1973 in vain. By Government order dated 22nd December, 1972, the Paddy Research Station, Majhera, Nainital was transferred to Govind Vallabh Pant University and Technology, Pantnagar and the Director of the Institute at Kanpur who was exercising administrative control over the said Rice Research Station, Majhera, handed over all the posts and incumbents to the said University except that of the petitioner's service. By reason of the transfer of Rice Research Station where the petitioner was posted on promotion the said post stood transferred to the said University. One Dr. S.C. Yadav who was also promoted to Class I service was not being relieved by the Institute to join service at Majhera, Nainital. However, he was posted as Agronomist, Oil Seeds at Kanpur in a Class I post. Whereas the petitioner though similarly situated was not allowed to join in Class I post either at Majhera or at Kanpur where five Class I posts were vacant within the administrative control of the Director of the Institute at the material point of time.
(2.) By letter dated 17th October, 1974, the Special Secretary Agriculture proposed alternative posting of the petitioner in Class I service in the Institute. By order dated 27th February, 1975, the Director approved the said proposal (Annexure 6). In the year 1975, the entire Institute was transferred to Chandra Shekhar Azad University along with all incumbents and posts on the establishment of the said University in 1975. The Institute was handed over to the University on 30th June 1975. In reply to the letter dated 19th March, 1975 addressed by the Deputy Secretary regarding the approval of the proposal of the Director of the Institute with regard to petitioner's posting in Class I post, the Vice-Chancellor, by his letter dated 15th May, 1975 replied that the petitioner was an employee of the Institute. Since the Institute was still functioning, therefore, the petitioner's posting in Class I post in the University did not arise (Annexure 9). The petitioner went on making representations successively as disclosed in Para 21 of the writ petition which are Annexures 10 to 23 in vain. A Government Order dated 30th September, 1976 was issued incorporating the terms and conditions of the merger of the Institute. In terms of the said Government Order, since the petitioner was entitled to Class I Cadre on the date of transfer, he was, therefore, entitled to be absorbed in Class I service in the University for which the incumbent would have to exercise option and resign from the Government service. Though appropriate orders for promotion were passed by the University after the merger in respect of various other officers of the Institute, but the petitioner's case was never considered. The petitioner had pointed out that many of his juniors named in Paragraphs 24, 26 and 27 were allowed to join Class I Cadre and have also been given super-scale while the petitioner was deprived of similar benefit. The petitioner was still continuing in Class II post in the University. In the facts and circumstances of the case, the petitioner was entitled to Class I post and Pay Scale since 1972. In the circumstances, the petitioner moved writ petition No. 1129 of 1985 which was disposed of by order dated 23rd January, 1985 (Annexure 31) directing the State of U.P. to consider the petitioner's representation. The petitioner filed another representation pursuant to which he was allowed to exercise his option even after the expiry of the period for exercising option. Pursuant to the said order, the petitioner had exercised the option. The petitioner's promotion given in 1972 had never been cancelled. By an order dated 28th March, 1985, the petitioner's representation was rejected. Therefore, the petitioner has filed the present writ petition praying for quashing the said order dated 28th March, 1985 (Annexure 32) and for a direction to the respondents to allow the petitioner in Class I service in the University and pay all his arrears corresponding to the post since 1972 and also to give promotion in the next higher post from the date when his immediate junior had been so promoted and to absorb the petitioner against such equivalent post accordingly. *
(3.) The respondent No. 3 being the Chandra Shekhar Azad University of Agriculture and Technology, Kanpur is contesting the case by filing a counter-affidavit. In the said counter-affidavit, the following case has been made out. The petitioner was confirmed in Class II Cadre with effect from 1st January, 1974. The position of the petitioner at SI. No. 6 in the seniority list pertaining to 1977 was not admitted by the University. The post of Agronomist is filled up after advertisement through the process of selection open both to outsiders and departmental candidates. When the post was advertised, the Selection Committee selected Dr. Suraj Bhan as most suitable candidate on the basis of his selection. According Dr. Suraj Bhan was given adhoc appointment since regular appointment could only be made by UPPSC. The recruitment was to be made pursuant to Government Order dated 17th February, 1971 under which a Selection Committee was appointed by which Dr. Suraj Bhan was selected. Therefore, the petitioner can not compare his case with that of Dr. Suraj Bhan. The same Committee had recommended the petitioner for adhoc appointment on the post of Class 1 cadre as Rice Agronomist at Rice Research Station, Majhera, Nainital, in the year 1972. The petitioner was not interested to move out of Kanpur. In the order of adhoc appointment itself, it was mentioned that the petitioner stands relieved and was directed to take over the charge immediately and hand over the charge of the present post as is apparent from Annexure 3 to the writ petition. There is an endorsement by the Director for handing over charge by him. The petitioner was never prevented or restrained from joining the new assignment. The order of appointment and posting is made by the State Government. It appears from Annexure 3 that a large number of persons were appointed and posted at different places along with the petitioner by the same order. All except the petitioner were relieved and had jointed their new assignment pursuant to the same endorsement and order. No separate order of release has been passed for any of them. In fact the petitioner was interested in occupying a Class I post at Kanpur. The existence of representations dated 15th October, 1972 and 19th October, 1972 has been denied by the respondents on the ground that those are not on record and must have been manufactured. On his own accord, the petitioner did not join at Majhera. The University was not interested in retaining him at Kanpur. Since the petitioner did not join at Majhera, therefore, when the said Research Centre merged with the Pant Nagar University, the petitioner's post could not be surrendered to the University inasmuch as the petitioner had been working then at Kanpur. It the petitioner had jointed at Majhera, he would definitely have been transferred to the said University. It was the State Government who had appointed the petitioner in Class I post with which the University had nothing to do. It is the State Government who passes the order of transfer and posting. The Director only carries out the same. If a Class I post is vacant, the Director has no power to allow any one to work in the said post. Therefore, it was not possible for him to allow the petitioner to work in a Class I post at Kanpur. The persons named in Paragraph 7 to the writ petition were appointed through the selection process after advertisement on adhoc basis. The selection was open. The Government did not issue any revised order in favour of the petitioner so as to enable the Director to accommodate the petitioner in a Class I post at Kanpur. The petitioner had also not exercised his option resigning from the service of the State Government to get himself absorbed in the University. Therefore, he could not lay his claim in the post created by the University on 1st July, 1975 which is to be filled up according to the Rules governing recruitment in the University which is different from those of the Government. Since the petitioner did not join a Class I post at Majhera where he was posted and had been working in Class II post at Kanpur, therefore, when the petitioner exercised his option for being absorbed in the University, he was given a post equivalent to his status in Class II post. On account of petitioner's own conduct, he himself had given up his claim for promotion in Class I post by not joining at Majhera. No person junior to the petitioner has been posted in Class I post in Chandra Shekhar Azad University. The rule of absorption to Chandra Shekhar Azad University is governed by the G.O. dated 13th September, 1976 in terms whereof in the facts and circumstances of the case, the petitioner could not be given Class I post at the time of absorption. A high power committee was constituted in accordance with the said Government Order dated 13th September, 1976. The said Committee took complete care and gave further status of equal post to the persons working in the Institute before the creation of the University. However, the representation of the petitioner was rejected on 28th March, 1985, by the Governor in accordance with the Rules. There was on infirmity in the order of rejection. By order dated 24th September, 1983 (Annexure 'Ca-2'), the Director informed the petitioner that he should come back to the Department of Agriculture. But the petitioner did not avail of the said opportunity, since he was not interested to move out from Kanpur. By letter dated 7th October, 1983 (Annexure 'Ca-3'), the University informed the petitioner about the letter of the Director and informed him that he may avail of the opportunity offered to him by the Director. The high power committee made the posting after careful scrutiny on all aspects relating to employment at the time of absorption of the officers including the petitioner. The Government Order dated 13th September, 1976 required exercise of option. The Government accepted the option of the petitioner by which he had resigned from the Government service and opted for joining the University by an order dated 8th April, 1985 (Annexure 'CA-4'). Only thereupon by order dated 4th May, 1985 (Annexure 'CA-5'), the petitioner was absorbed in the University. In the circumstances, the writ application should be dismissed.;