JUDGMENT 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 along with 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 joined 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, Rajaji 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 Ruie 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 Rule 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.
3. 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 of 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 htm 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.
4. The petitioner was appointed as lecturer on 30.8.1972 in History Department in Government Raza Post Graduate College, 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 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.
5. Recruitment to the various categories of posts in the service shall be made from the following source :
Category I Director of Higher Education Selection through the Departmental Selection Committee on the basis of merit from amongst members of the service in Category II of Rule 4 (2).
Category II Principal Government Post-graduate Colleges, Joint Director of Higher Education and College Development Officer ;
Promotion by selection through the Departmental Selection Committee on the basis of merit from amongst members of the service specified In Category III of Rule 4 (2).
Category III
(a) Principal, Degree Colleges All the posts of Principal, Government Degree Colleges shall be filled by promotion from amongst members of the service specified in Category IV of Rule 4 (2) on the recommendation of the Departmental Selection Committee on the principle of seniority subject to rejection of the unfit :
Provided that if no suitable candidate is available in Category IV for promotion to the post of Principal, those in Category V and in case there is no suitable candidate in Category V, those in Category V! may be considered.
(b) Regional Higher Education Officer By transfer from amongst the members of the service specified in Categories III (a.) and III (c)
(c) Deputy Director of Higher Education By transfer from amongst Officers in Categories III (a) and III (b).
Category IV
(a) Professor No new appointments to the posts of Professors shall be made hereafter.
(b) Assistant Professor No new appointments to the posts of Assistant Professors shall be made hereafter.
(c) Assistant Director of Higher Education By transfer from amongst the Officers in Categories IV (a) and IV (b) and when no Officer of Category IV (a) and IV (b) is found suitable for appointment to this post, an officer in Category V or VI may be considered provided that such officer possesses 15 years of teaching experience in Government Degree or Post-graduate Colleges.
Category V Head of Degree Department No new appointments to the posts of Head of Department shall be made hereafter.
Category VI
(a) Senior Lecturer No new appointments to the posts of Senior Lecturer shall be made hereafter.
(b) Assistant Deputy Director By transfer from amongst the Officers in Category VI (a) and when no suitable Officer is available in Category VI (a) an officer in Category VI (c) may be considered provided that such officer possesses ten years of teaching experience In the Government Postgraduate College.
(c) Lecturers Direct recruitment through the Commission."
5. A perusal of Rule 4 indicates the different categories of posts and their strength in order of hierarchy, The head of department is higher in rank than lecturers and senior lecturers with separate strength. The pay scale of the two must also be different. The petitioner was promoted and appointed as Head of Department in 1974 and has worked in this category in different degree colleges. The stand in the counter-affidavit that the most teachers in the department become head of department does not appear to be correct because the petitioner was appointed as head of department by notification issued on 22.11.1974, it is not denied that when pay was revised, the petitioner's pay was fixed in the category of head of department. It is true that the petitioner was appointed on ad hoc basis. But he having worked as head of department since 1974 in different colleges, it is too late in the day to place him in the category of lecturer for purposes of promotion as Principal. Rule 4 clearly lays down that Category III (a) posts would be of Principal of Degree Colleges. It further lays down that the head of degree department to be Category V post. The mode of recruitment of Principals of Degree Colleges has been specified in Rule 5 Category III (a) which provides that the post of Principal of Government Degree College shall be filled by promotion from amongst the members of service specified in Category IV of Rule 4 (2) on the recommendation of Departmental Selection Committee on the principle of seniority subject to rejection of unfit. Therefore, the persons who are entitled for first preference for being appointed as Principal, Government Degree Colleges were Professors, Assistant Professors and Assistant Directors of Higher Education. The proviso to Rule 5 Category III (a) clearly provided that if no suitable candidates were available in Category IV for promotion to the post of Principal, then those mentioned in Category V of Rule 4 (2) would be considered and if there is no suitable candidate in Category V then those in Category VI would be considered. The petitioner was working as Head of History Department when rules came into force. Therefore, in absence of Category IV candidates, namely, Professors, Assistant Professors or Assistant Directors of Higher Education, the petitioner who was working on Category V post, was entitled to be considered for promotion as Principal, Government Degree College, This was admittedly not done by the respondents. The respondents have relied on Uttar Pradesh Sarkari Sewak (Padonnati Dwara Bharti Ke Liye Mandand) Niyamawali, 1994 as amended in 1996 which is a general rule and this rule would apply only where there is no specific service rule. Where the State Government had framed specific rules for a particular service, then it would exclude the general rule and the service of the petitioner and other persons who are governed by 1985 rules would continue to be governed by these rules and all the promotion and appointment to the posts shall have to be made by the respondents in accordance with Rules 1985 and the applicability of General Rules, 1994 amended in 1996 would be excluded. Since the State Government has applied the general rules though there were specific service rules applicable to the petitioner and other lecturers who had been promoted as Principal, therefore, the promotions made by the respondents of lecturers to the post of Principal on the basis of composite seniority list of lecturers cannot be said to have been made in accordance with Rules, 1985. Thus, the promotions made by the respondents have to be held to be illegal and in violation of Rules, 1985.
6. There is another aspect of the matter. In the promotion order dated 22.8.1997, Annexure-15 to the petition, it is mentioned that the lecturers working in pay scale of Rs. 2,200-4,000 are promoted temporarily as Principal, Government Degree Colleges in pay scale of Rs. 3,700-5,700. Therefore, one thing is clear that the pay scale of lecturer, Government Degree Colleges was Rs. 2,200-4,000 whereas the Director, Higher Education, U. P., Allahabad on 18.2.1988 fixed the petitioner's pay in the cadre of head of department in pay scale of Rs. 3,000-5,000 with effect from 1.1.1986. These facts stated in paragraph 20 and Annexure-11 to the writ petition had not been denied in the counter-affidavit filed by the respondents. Thus, the petitioner who was working on a higher post and pay scale as head of department was entitled to be considered first for promotion as Principal, Government Degree College and only thereafter, the lecturers who were working in inferior pay scale could be considered.
7. The argument of the standing counsel that none of the promotees have been impleaded to indicate that they were juniors to the petitioner is without any merit. The petitioner is not seeking relief against any promotee. He is claiming that he should have been promoted, as he was higher in rank than any lecturer who has been promoted as Principal. The seniority in lecturers grade was immaterial for promotion to the post of Principal, as the petitioner was head of department and was entitled to be considered for the post of Principal prior to lecturers as is clear from Rule 5 Category III (a) of the rules.
8. The respondents have made promotion or appointment of lecturers on the posts of Principal, Government Degree Colleges by applying an amended rule, namely, Uttar Pradesh Sarkari Sewak (Padonnati Dwara Bharti Ke Liye Mandand) Niyamawali, 1994 which was illegal, but since the promotees have been working for the last so many years, the interest of justice demands that their promotion may not be disturbed by this judgment. The petitioner shall be entitled for promotion or appointment on the post of Principal, Government Degree College. However, a direction is liable to be issued to the respondents that all future promotions to the posts of Principal, Government Degree Colleges shall be made in accordance with U. P. Higher Education (Group 'A') Service Rules, 1985, Category III (a).
9. In the result, this writ petition succeeds and is allowed. A writ of mandamus is issued to the respondents to constitute Departmental Selection Committee for considering the promotion of the petitioner to the post of Principal, Government Degree College from 22.8.1997 the date when juniors to the petitioner have been promoted as Principal and shall pass appropriate orders in accordance with Rule 5 Category III (a) of the rules within a period of three months from the date a certified copy of this order is produced before respondent No. 2. It is made clear that since the promotions earlier made by the respondents are not being disturbed by this judgment, any future promotion or appointment on the post of Principal, Government Degree College shall be made by the respondents strictly in accordance with Rule 5, Category III (a) of U. P. Higher Education (Group 'A') Service Rules, 1985.
10. The parties shall bear their own costs.