JUDGMENT M. Katju, J.
1. This writ petition has been filed for a writ of mandamus directing the respondents to treat the petitioners as belonging to State-wide cadre or plane cadre in group 'kha' post in U. P. Saichhik Samanya Shiksha Samvarg Seva Niyamavali, 1992 and to consider them for all purposes like transfer and promotion to group 'ka' post treating them as such. It has further been prayed that the respondents be directed to constitute a combined seniority list in general cadre (hill and plain) and to make promotion, etc. from combined seniority list in group 'ka' post or to treat the petitioner as eligible to promotion in plane cadre to group 'ka' post by treating them as belonging to plane cadre in group 'kha' post. It has further been prayed that a mandamus be issued to the respondents to treat the petitioners senior to the appointees of 1987 who had been selected and appointed in pursuance of 1985-86 advertisement (Inspecting Branch).
2. Heard learned counsel for the parties.
3. It appears that an advertisement was issued by the U. P. Public Service Commission in various newspapers including 'Nav Bharat Times' on 27.2.1982, inter alia, inviting applications for selection and appointment to the post of Head Masters in Government High School and Normal School in Uttar Pradesh in subordinate education service gazette teaching side (male). True copy of the advertisement is Annexure-1 to the writ petition. Thereafter another advertisement was issued for Women Headmistress in similar schools in female branch vide Annexure-2 to the writ petition. The petitioners applied and appeared in the examination.
4. A perusal of this advertisement shows that it was not mentioned therein that these advertisements are for hill cadre or plane cadre but rather it was for U. P. wide cadre. The petitioner was selected but the petitioner was given appointment against hill cadre although it is alleged by the petitioners that there was no such option for hill cadre and instead there was general cadre for both hill and plane.
5. It is stated in paragraph 4 of the writ petition that on 25.11.1980, the State Government issued a G.O. directing that different cadres for hill and plane areas be constituted for subordinate education service gazette vide Annexure-3 to the writ petition. In this G.O., it is mentioned that the incumbents would be allotted hill or plane cadre in accordance with the options for the cadre they desire. A person will be given option of his choice but if there is no vacancy, he will be treated to be on deputation on the other cadre for which he has not opted but be can come back to the cadre of his choice when there is any vacancy. However, no option was asked from the petitioners and hence obviously none was given.
6. It is stated in paragraphs 9 and 10 of the petition that all the petitioners' except petitioner No. 3 while filling the application form gave preference for the plane cadre. However, all the petitioners were posted in the hill cadre area.
7. In the meantime before the petitioners' appointment, statutory rules came into force superseding the G.O. of 1980 vide Annexure-12 to the writ petition. These rules apply to the whole of Uttar Pradesh and are not applicable for separate cadres. The petitioners' appointment, were made in 1994 after coming into force of the aforesaid rules dated 31.3.1993.
8. Subsequently, the rules were amended on 18.4.1992 for the higher post to which the petitioner has been promoted on ad hoc capacity. Rule 2 of these 1992 Rules specifically mentioned that these rules are Statewide Rules. However, even after their promotion, the petitioners were posted in hill cadre.
9. On 25.11.1992 rules were framed under Article 309 of the Constitution known as U.P. Parvatiya Up Samvarga Niyamavali, 1992 vide Annexure-14 to the writ petition. Rule 6 of these rules state that the appointment will be made according to the choice of the incumbent. However, no choice was asked from the petitioners and hence, they could not give their choice.
10. In Rule 6 (3), it is stated that if no choice is given within a period of three months, it would be deemed that the person wants to be taken in general State-wide cadre.
11. The petitioners' case is that the petitioners were appointed in pursuance of the advertisement which did not state that the selection and appointment will be made in separate cadres, either hill or plane cadre. Even if the G.O. of 1980 is treated to be applicable, it is mentioned therein that person can give his choice and appointment will be made according to the choice but no choice was asked for and hence naturally none could be given. The petitioner's further case is that the statutory rules, came Into force meanwhile which do not indicate any bifurcation or separate cadre like hill or plane cadre. Thereafter the petitioner was promoted and the promotion rules also do not say that the cadre was separate, rather the rules specifically state that it is State-wide cadre. Further even If U. P. Parvatiya Samvarga Niyamavall is applicable, then this posting depends on one's option and If option is not given, the person will be treated in the genera! cadre.
12. A counter-affidavit has been filed which does not seriously dispute the allegations in the petition. The respondents have relied on the G.O. of 1980. That G.O. as explained by the learned counsel for the petitioner gave a person choice of cadre and states that the appointment will be given as per choice of the cadre but no choice was asked. Further, statutory rules, have subsequently come into force which do not talk of bifurcation of the cadre. As already Indicated above, in the Parvatiya Samvarga Niyamavall also, option is to be called for but it was never called. In fact, this rule specifically states that if any option is not given the person will be treated as in general State-wide cadre.
13. In our opinion, therefore, the posting of the petitioners in hill cadre is arbitrary and illegal. The writ petition is, therefore, allowed. The respondents are directed to treat the petitioner as belonging to State-wide cadre of U. P. However, we reject the petitioners' claim to be treated senior to the appointees of 1987 since the petitioners were appointed in 1994.