JUDGMENT By the Court.—Heard Sri O.P. Singh, Senior Advocate, assisted by Sri S.K. Rao on behalf of the petitioner, Sri A.P.N. Giri Advocate on behalf of the private respondents, Sri B.D. Pandey Advocate on behalf of the University and Standing Counsel on behalf of the State respondents. 2. B.R.D. Post Graduate College, Deoria (hereinafter referred to as ‘Degree College’) is an institution affiliated to Deen Dayal Upadhyaya Gorakhpur University, Gorakhpur. The terms and conditions of the appointments and other service conditions of the teachers of the aforesaid degree college are regulated in accordance with the U.P. State Universities Act, 1973 and First Statutes and the Ordinances of the University concerned. 3. Petitioner before this Court Kedar Nath Singh was appointed as Lecturer in the said degree college on 3.8.1967. One Awadh Narain Pandey was similarly appointed as Lecturer on 23.8.1967 and Respondent No. 5 namely Kedar Nath Chaturvedi was appointed as Lecturer in the said Degree College on 7.9.1979. 4. On the recommendation of University Grant Commission the State Government vide Order dated 10.9.1987 and dated 7.1.1989, as modified/clarified from time to time, introduced the carrier advancement scheme for the teachers working in affiliated Degree Colleges in the following manner : (a) On completing 8 years of service a Lecturer would become entitled for grant of senior scale of Rs. 3000-5000 on the recommendation of the Selection Committee. (b) A Lecturer, who may or may not have a Doctorate Degree or equivalent published work thereto but satisfies all other required qualification, as mentioned in the Government Order, would be entitled for placement in the Selection Grade of Rs. 3700-5700, on completing 8 years of service in senior scale, on the recommendation of the Selection Committee. 5. The same Government Order independently provided for promotion as Reader in the same pay scale of Rs. 3700-5700. A Lecturer, who had completed 8 years service in senior scale and total service of 16 years could offer himself to be promoted as Reader on the condition that he had obtained a Doctorate Degree or had an equivalent published work and on fulfilment of other conditions mentioned therein. Clause 15-A(1) of the Government Order dated 7.1.1989 further provided that a Lecturer of the University or Associated College, already in Selection Grade of Rs. 3700-5700, may offer himself for promotion as Reader and if found suitable by the Selection Committee, he may be so promoted. 6. Clause 15-A(1) of the Government Order dated 7.1.1989 further provided that a Lecturer of the University or Associated College, already in Selection Grade of Rs. 3700-5700, may offer himself for promotion as Reader and if found suitable by the Selection Committee, he may be so promoted. 6. In case Selection Committee refuse to promote such a Lecturer, reasons for the same are required to be recorded by the Selection Committee. Similarly, a Lecturer of the affiliated College, who was in Selection Grade and has put in requisite number of years of service is also entitled to apply for promotion as Reader. In case he is not found fit for promotion as Reader, the Selection Committee shall consider his claim for placement in Selection Grade. 7. In terms of the aforesaid Government Order and the subsequent modification/clarification issued in respect thereto, Dr. A.N. Pandey was granted the designation of Reader and pay scale admissible thereto w.e.f. 1st July, 1982. Similarly, Dr. K.N. Chaturvedi was granted designation of Reader and pay scale admissible thereto on 18.4.1987. The petitioner has, however, continued as Lecturer only. 8. The permanent Principal of the College Shankerji Mishra retired. The District Magistrate in his capacity as President of the Committee of Management directed that the charge of the officiating Principal be handed over to the petitioner. The petitioner is stated to have taken charge of the post of officiating Principal on 21.5.2007 initially for a period of three months. Thereafter another order dated 6.9.2007 was issued appointing the petitioner on the post of officiating Principal on the ground that he was the senior most Lecturer of the College. This officiating appointment was to continue till a regularly selected Principal recommended by the U.P. Higher Education Services Commission joins. 9. Dr. K.N. Chaturvedi, not being satisfied with the aforesaid appointment, made a representation dated 11.12.2007 to the Vice Chancellor. The Vice Chancellor of the University invited objections thereto and by means of his order dated 19th February, 2008 held that since Sri K.N. Chaturvedi was granted the designation of Reader on 14.8.1997 on the recommendation of a validly constituted Selection Committee, is entitled to be treated senior to the petitioner, who was working as Lecturer, as well as A.N. Pandey who was granted designation of Reader earlier but without recommendation of the Selection Committee. The Vice Chancellor has placed reliance upon Statute 18.05 read with 18.08 of the First Statutes of the Gorakhpur University. He has held that Dr. K.N. Chaturvedi being the senior most Reader in the institution is entitled to be appointed as officiating Principal of the College. This order of the Vice Chancellor of the University has been challenged by means of this writ petition basically on the following grounds : (a) No cadre/post of Reader is contemplated or provided for in an affiliated Degree College and therefore, any promotion under the career advancement scheme, in term of the Government Orders referred to above, would only be an ex-cadre promotion. Inter se seniority of the teachers working on the cadre post shall not be adversely affected because of such ex-cadre promotion. (b) Seniority of teachers of affiliated Degree Colleges has to be determined with reference to their substantive length of service as Lecturer only. 10. Petitioner has also referred to the latest Notification dated 11th September, 2006 issued in exercise of powers under Section 50 (6) of the U.P. State Universities Act, which provides for amendment/addition of statute in the First Statutes of the University qua seniority of Lecturers of affiliated Degree Colleges and reads as follows : ^^la[;k&2308@lÙkj&1&2006&100¼70½@2006] m0 fk0&06 izs"kd] jktho dqekj lfpo] mÙkj iznsk kkluA laok esa] dqylfpo] leLr jkT; foofo|ky;] mÙkj iznskA leLr fk{kk vuqHkkx&1 y[kuÅ fnukad&11 flrEcj] 2006 fo"k; % jkT; foofo|ky;ksa ls lEc)@lg;qDr egkfo|ky;ksa ds izk/;kidksa dh T;s"Brk fu/kkZj.k ifjfu;e dk leknskA egksn;] mi;qZDr fo"k;d kkluknsk la[;k 1707@lÙkj&1&2006&100¼70½@2006] m0 fk0 fnukad 23 twu 2006 dks d`i;k lanHkZ xzg.k djsa ftlds }kjk fuEufyf[kr izkfo/kku dks ifjfu;ekoyh esa lqlaxr LFkku ij izfrLFkkiu lqfufpr fd;s tkus ds funsZk fn;s x;s Fks&foofo|ky;ksa ls lEc)@lg;qDr egkfo|ky;ksa ds ,sls izoDrkvksa dks ftUgsa p;u osrueku@oS;fDrd osrueku@vuqeU; djk;k x;k gS] dh izk/;kid laoxZ esa ikjLifjd T;s"Brk ogh jgsxh tks mUgsa mipk;Z inuke vuqeU; gksus ds le; muds }kjk /k`r izoDrk in ij FkhA 3- mi;qDr ds lEcU/k esa eq>s ;g dgus dk funsZk gqvk gS fd izdj.k esa lE;d fopkjksijkUr Jh jkT;iky mÙkj iznsk jkT; foofo|ky; vf/kfu;e] 1973 dh /kkjk 50 dh mi/kkjk ¼6½ esa fufgr kfDr dk iz;ksx djrs gq, Jh dqykf/kifr dh lgefr ls mifjlanfHkZr kkluknsk fnukad 23 twu] 2006 esa izkfo/kkfur O;oLFkk dks leLr jkT; foofo|ky; dh ifjfu;ekoyh ds lg;qDr@lec) egkfo|ky;ksa dh T;s"Brk ls lEcfU/kr v/;k; esa lekfgr@izfrLFkkfir djus dk vknsk nsrs gSaA Hkonh; ¼jktho dqekj½ lfpo** 11. It is further stated that the power to create post in the Degree Colleges is with the Director of Education (Higher) as has been held by the Division Bench of this Court in the case of Dr. Jai Prakash Narain Srivastava v. Director of Higher Education, U.P. at Allahabad and others; 1987 UPLBEC 727. 12. On behalf of the private respondents, the contention so raised is opposed on the ground that the promotion on the post of Reader, having been made on the recommendation of the Selection Committee in terms of the Government Order, is admittedly on a higher post. Such designation as Reader having not been withdrawn at any point of time, the person so designated as Reader is to be treated senior to a person who is a Lecturer irrespective of length of service put in by both in the cadre of Lecturer. In support thereof reliance has been placed upon Statutes 18.16 of the First Statutes of the Gorakhpur University, which provides that the provisions of Statutes 18.01, 18.02, 18.05 and 18.08 shall mutatis mutandis apply to the teachers and Principal of the affiliated Degree Colleges, as they apply to the teachers of University. Statute 18.05 in turn provides that a Reader shall be deemed to be senior to every Lecturer. 13. Counsel for the respondent further submitted that a Division Bench of this Court in the case of Dr. Anirudh Pradhan and another v. State of U.P. and others, Writ Petition No. 5708 of 1995 decided on 15.5.1997, had struck down an earlier Government Order dated 16th September, 1994, which provided that a Reader, on being granted such promotion, will not be entitled to the benefits of seniority flowing therefrom. The Division Bench held that such a Government Order runs contrary to the Statute 18.06 read with Statute 18.05. 14. It is, therefore, submitted that the controversy raised in the present writ petition stand concluded under the said judgment, which has also been followed in the subsequent judgment in the case of Anirudh Pradhan (Dr.) v. Chancellor, Purvanchal University, Jaunpur and others, (2001) 2 UPLBEC 1070 . 15. In the counter-affidavit filed on behalf of the University it has been stated that a person, who is designated as Reader, is entitled to be treated senior to a person who is working as lecturer in a Degree College in view of Statute 18.16 read with Statute 18.05. 15. In the counter-affidavit filed on behalf of the University it has been stated that a person, who is designated as Reader, is entitled to be treated senior to a person who is working as lecturer in a Degree College in view of Statute 18.16 read with Statute 18.05. Therefore, the order of the Chancellor is justified. Reference has also been made to the fact that Government Order dated 12th August, 2002, which provided that on being granted designation as Reader, the incumbent will not become senior to the Lecturers working in the same college, their inter se seniority shall be determined on the basis of their total length of service put in as Lecturer. Said Government Order has been subjected to challenge in Writ Petition No. 41499 of 2002, K. Gaur v. State of U.P. and others and the Hon’ble High Court has stayed the operation of the Government Order dated 12.8.2002. 16. Similarly, it is pointed out that the Government Order dated 11.9.2006, which has been issued in exercise of powers under Section 50 (6) of the State University Act reiterating that seniority amongst teachers of the Degree Colleges has to be determined having regard to length of service put in as Lecturer irrespective of whether any Lecturer has been designated as Reader or not, has been challenged by means of Writ Petition No. 1766 of 2006; Dr. Yamini Sharma v. State of U.P. and others The said Government Order dated 11.9.2006 has also been stayed by this Court. 17. In view of the aforesaid, it has been contended that a Reader is liable to be treated as Senior to a person, who may have put in more length of service as Lecturer in the College. 18. On behalf of the State of U.P. a counter-affidavit has been filed by the Director, Higher Education U.P., Allahabad and a conflicting stand has been taken. It is stated that the State Government by means of the notification dated 23rd June, 2006 required all the State Universities to make necessary amendments in their Statutes so that mere grant of designation as Reader under the career advancement scheme may not affect the inter se seniority of the teachers working in the Degree Colleges but no response was received. Therefore, the State in exercise of powers under Section 50 (6) has issued the Government Order dated 11.9.2006 for the purpose and amended the Statutes of all the Universities accordingly. It has, therefore, been contended that the grant of Reader’s designation to a Lecturer of affiliated Degree College will not affect the inter se seniority of the teachers of that College. 19. Counsel for the petitioner in rejoinder submits that the judgment of the High Court (supra) relied upon by the Counsel for the petitioner have not taken note of the law laid down by the Hon’ble Supreme Court of India in the cases of Dr. Rashmi Srivastava v. Vikram University and others, (1995) 3 SCC 653 ; Dr. Bal Krishna Agarwal v. State of U.P. and others, 1995 (1) SCC 614 ; and Dr. Suman Agarwal v. Vice Chancellor and others, 1996 (1) SCC 632 . 20. Lastly the basic issue which has been raised before this Court and which has not been examined in the earlier judgment of this Court is that there is no cadre post of Reader in Degree Colleges and, therefore, career advancement scheme, as provided under the Government Order dated 10.9.1987 and dated 7.1.1989 including the designation of Reader, would be against an ex-cadre post, which will not in any way affect the inter se seniority of persons working on the cadre post i.e. of Lecturers. It is, therefore, submitted that the order passed by the Vice Chancellor is legally not sustainable and is liable to be set aside. 21. Having heard the Counsel for the parties and having gone through the records of the writ petition, the following facts emerge : 22. Petitioner was appointed as Lecturer in the affiliated Degree College on 3rd August, 1967, A.N. Pandey was appointed as Lecturer on 23.8.1967, while respondent No. 5 K.N. Chaturvedi was appointed as Lecturer in the same college on 7.9.1979 i.e. after 12 years of the appointment of the petitioner. A.N. Pandey was granted designation of the post of Reader under the Government Order of 10.9.1987/7.1.1989, as amended from time to time, vide order dated 22.2.1995 w.e.f. 1st July, 1982, while K.N. Chaturvedi was granted designation as Reader on 14.8.1997. 23. A.N. Pandey was granted designation of the post of Reader under the Government Order of 10.9.1987/7.1.1989, as amended from time to time, vide order dated 22.2.1995 w.e.f. 1st July, 1982, while K.N. Chaturvedi was granted designation as Reader on 14.8.1997. 23. The Vice Chancellor under the impugned order has held that since the Government Order dated 10.9.1987/7.1.1989, as modified/clarified from time to time, not only provides for grant of pay scale but also for the designation of Reader on the recommendation of the Selection Committee, such designated Readers shall be treated as senior to the Lecturers working in the College having regard to the First Statute/Ordinances of the University. He has further held that since such designation of Reader has been granted to A.N. Pandey without there being any recommendation of the Selection Committee, he is not entitled to the benefit flowing therefrom and K.N. Chaturvedi, who was granted such designation on the recommendation of the Selection Committee on 14.8.1997, has been declared to be the senior most Reader entitled to officiate as officiating Principal. 24. The basic controversy giving rise to the present writ petition is, therefore, confined to the dispute as to whether a teacher, on being designated/promoted as Reader under the career advance scheme in terms of the Government Orders dated 10.9.1987 and dated 7.1.1989, as amended from time to time, is entitled to be declared senior to a Lecturer working in the same Degree College irrespective of the length of service put in as Lecturer in view of the Statutes 18.05 read with Statute 18.08 of the First Statutes of the Gorakhpur University or not. 25. It is not in dispute between the parties that so far as the Degree Colleges are concerned there is no cadre of Readers statutorily provided. The State University Act and the First Statutes/Ordinances only provide for two cadres for teaching faculty members in the Degree Colleges namely Principal and teacher. Reference may be had to Chapter-X, Part-II of the First Statutes of the Gorakhpur University, which provides for the qualifications and appointment of the teachers of affiliated Degree Colleges and specifically refers to the post of Lecturers in various faculty only. No other post for affiliated Degree Colleges is contemplated by the Statutes nor minimum qualification in respect of any other post except Lecturer is contemplated. For the post of Principal separate qualification has been prescribed under Statute 11.13-A. 26. No other post for affiliated Degree Colleges is contemplated by the Statutes nor minimum qualification in respect of any other post except Lecturer is contemplated. For the post of Principal separate qualification has been prescribed under Statute 11.13-A. 26. It is also not in dispute that the power to create post in aided and affiliated Degree Colleges covered by Chapter XI-A of U.P. State Universities Act, 1973 vest with the Director of Higher Education only, as has been explained by the Division Bench of this Court in the case of Dr. Jai Prakash Narain Srivastava v. Director of Higher Education, U.P. at Allahabad and others, 1987 UPLBEC 727. 27. While in respect of University the faculty members have been broadly classified as Professors, Lecturers and Readers. Reference may be had to Statute 10.01 of Chapter X of the First Statutes of the Gorakhpur University, which classifies the teachers of the University as (1) Professors, (2) Readers (3) Lecturers and separate qualification for each category of the teacher has been provided for under the said statute. Seniority amongst the teachers of the University is regulated under Chapter XVII, Part-I starting from Statute 18.01 to 18.09. So far as the teachers of the University are concerned, Statute 18.05 of the First Statutes of the University reads as follows : “18.05. The following rules shall be followed in determining the seniority of teachers of the University : (a) A Professor shall be deemed senior to every Reader, and a Reader shall be deemed senior to every Lecturer. (b) In the same cadre, inter-se seniority of teachers, appointed by personal promotion or by direct recruitment shall be determined according to length of continuous service in such cadre : Provided that where more than one appointments have been made by direct recruitment at the same time and an order of preference or merit was indicated by the selection committee or by the Executive Council, as the case may be, the inter se seniority of persons so appointed shall be governed by the order so indicated : Provided further that where more than one appointments have been made by promotion at the same time, the inter se seniority of the teachers so appointed shall be the same as it was in the post held by them at the time of Promotion. (c) When any teacher holding substantive post in any University (other than the University of Gorakhpur) or in any constituent college or in any Institute whether in the State of Uttar Pradesh or outside Uttar Pradesh, is appointed whether before or after August 1, 1981 to a post of corresponding rank or grade in the University the period of service rendered by such teacher in that grade or rank in such University be added to his length of service; (d) When any teacher holding substantive post in any college affiliated to or associated with any University is appointed whether before or after the commencement of these statute as a Lecturer in the University, then one half of the period of substantive service rendered by such teacher in such college shall be added to his length of service; (e) Service against and administrative appointment in any University or institution shall not count for the purposes of seniority; Explanation.—In this Chapter, the expression “administrative appointment” means an appointment made under sub-section (6) of Section 13. (f) Continuous service in a temporary post to which a teacher is appointed after reference to a Selection Committee, if followed by his appointment in a substantive capacity to that post under Section 31(3)(b) shall count towards seniority.” 28. With regard to the teachers of affiliated Degree Colleges inter se seniority is to be determined in accordance with Part II of Chapter XVIII of the First Statutes of the University. Statutes 18.10 and 18.16, relevant for our purposes, are being quoted herein below : “18.10. The following rules shall be followed in determining the seniority of Principals and other teachers of affiliated colleges : (a) the Principal shall be deemed senior to other teachers in the college; (b) the Principal of a post-graduate college shall be deemed senior to the Principal of a Degree College; (c) the seniority of Principals and teachers of the affiliated college shall be determined by the length of continuous service from the date of appointment in substantive capacity; (d) service in each capacity (for example, as Principal or as a teacher), shall be counted from the date of taking charge pursuant to substantive appointment; (e) service in a substantive capacity in another University or another degree or post-graduate college whether affiliated to or associated with the University or another University established by law shall added to his length of service. 18.16. 18.16. The provisions of Statutes 18.01, 18.02, 18.05 and 18.08 shall mutatis mutandis apply to the teachers and Principal of affiliated colleges as they apply to the teachers of the University.” 29. On a simple reading of Statute 18.10, it would be apparently clear that seniority of teachers has to be counted from the date of taking charge pursuant to substantive appointment. However, Statute 18.16 provides that Statutes 18.01, 18.02,18.05 and 18.08 shall mutatis mutandis apply to the teachers of the affiliated Degree Colleges as they apply to the University teachers. Statute 18.05 (a) amongst other provides that a Reader shall be deemed senior to every Lecturer and (b) provides that in the same cadre, inter-se seniority of the teachers, appointed by personal promotion or by direct recruitment, shall be determined according to continuous length of service in such cadre. The other sub-clauses of Statute 18.05 lay down the mode and manner of determination of seniority of teachers appointed in one selection/one promotion as well as for counting of certain length of service for the purpose of seniority in the contingencies contemplated therein. 30. The issue up for consideration before this Court is as to whether Statute 18.05(a), which declares a Reader to be deemed to be senior to every Lecturer, would be applicable qua affiliated Degree Colleges or not. The aforesaid issue has to be decided by this Court with reference to an undisputed fact that so far as the Degree Colleges are concerned, there is no cadre of Reader and, therefore, it is only under the career advancement scheme, as per the Government Orders dated 10.9.1987 and dated 7.1.1989, as modified/clarified from time to time, the designation of Reader is granted to a Lecturer on the recommendation of the Selection Committee after completing certain length of service as Lecturer and on fulfilment of other conditions. 31. So far as the issue of designation under the career advancement scheme against an ex-cadre post is concerned, suffice it to refer to the judgment of the Hon’ble Supreme Court in the case of Dr. Rashmi Srivastava (supra), wherein the Hon’ble Supreme Court, after noticing large number of judgments applicable, in paragraphs 37, 38, 39 and 40 has held as follows : “37. Rashmi Srivastava (supra), wherein the Hon’ble Supreme Court, after noticing large number of judgments applicable, in paragraphs 37, 38, 39 and 40 has held as follows : “37. ......Unless Section 49 is suitably amended and a separate source of recruitment by way of internal promotion is contemplated by the Act there would remain no occasion of undertaking any exercise of fixing inter se seniority between ex cadre employees and cadre employees. It is not in dispute between the parties that neither the Act nor any ordinances or statutes of Respondent University even remotely whisper about creation of a separate recognised source of recruitment of Professors and Readers by way of departmental promotions.......” 38. It is true as submitted by learned Counsel for appellants that for avoiding stagnation and heart burning promotional avenues should be made available in any service as laid down by this Court in number of decisions to which our attention was invited by them. However the short question for our consideration is whether the University Act concerned has made such a provision. If a provision is made then there would be no difficulty in the way of the appellants but in the absence of such a provision mere availability of merit promotion scheme cannot elevate the merit promoted Reader or Professor to the cadre of such Readers or Professors as the case may be. They would remain ex cadre employees who cannot claim any inter se seniority with direct recruits forming the cadre concerned. It is not possible to agree with the contention of Shri Bobde and Dr. Dhavan that under the merit promotion scheme though the promotions were personal, to that extent there was a temporary extension of the cadre of Reader or Professor as the case may be or that they were special promotees as Dr. Dhavan would like to have it. The very guidelines of the scheme suggest that a merit promoted Reader or Professor will be treated to have a personal promotion. It will not create any addition to the cadre nor will it create any vacancy in the lower cadre from which he or she was promoted. The workload has to be so distributed as not to required any additional staff. Dr. Dhavan said that this was only because of the financial crunch. That may be so. It will not create any addition to the cadre nor will it create any vacancy in the lower cadre from which he or she was promoted. The workload has to be so distributed as not to required any additional staff. Dr. Dhavan said that this was only because of the financial crunch. That may be so. But ultimately the effect thereof would be that once a merit promoted Reader or Professor goes out of service there will be no post which will fall vacant in the promotional avenue. Consequently, it cannot be said that there was any temporary addition to the cadre strength of Reader or Professor as the case may be. We entirely concur with the reasoning adopted by the High Court while considering the relevant clauses of the merit promotion scheme when it took the view that Readers and Professors promoted under the scheme were not entitled to be included in the seniority list of directly recruited Readers and Professors. Reliance placed by learned Counsel for appellants on Statute 16 is also of no avail to the appellants for the simple reason that Statute 16 deals with seniority of teachers of the University. This statute is promulgated under Section 35(o) of the Act. Section 35(6) of the Vikram University Act (sic M.P. Vishwavidyalaya Adhiniyam, 1973) deals with the mode of determining seniority for the purpose of the Act. Consequently it will have to be read with Section 49 meaning thereby when a Professor, Reader or Lecturer is recruited under Section 49 how his seniority is to be determined can be decided in the light of the relevant statute framed under Section 35(o). When we turn to Statute 16 we find that as per clause (2) thereof the seniority of Professors, College Professors, Readers, Associate Professors or Lecturers shall be determined in accordance with the length of continuous service of such person in the cadre concerned taken together with length of continuous service which is equivalent to or superior to the cadre concerned. It was submitted by learned Counsel for the appellants that the word cadre as employed by Statute 16(2) is used in a loose sense. It is difficult to agree. It was submitted by learned Counsel for the appellants that the word cadre as employed by Statute 16(2) is used in a loose sense. It is difficult to agree. Statute 16(2) read with Section 35(o) and Section 49 leaves no room for doubt, that all those Readers and Professors who were recruited under Section 49 as direct recruits and who enter the cadres of Professors and Readers as the case may be shall have their seniority determined in accordance with length of service in their cadres concerned. As merit promotee Reader or Professor is outside the cadre there is no question of Statute 16(2) operating in his case. It is also pertinent to note that merit promotee Professors or Readers form a separate distinct class as compared to direct recruited Professors or Readers. It is true that as decided by Respondent 1 University, the same Selection Committee which directly recruits Professors and Readers under Section 49(2) deals with the question of granting merit promotions to the Lecturers concerned as Readers and Readers as Professors. But to that extent the machinery or infrastructure available under Section 49(2) for directly recruiting teachers was made available for deciding the eligibility of departmental candidates for merit promotion but that would not by itself create a new source of recruitment for promotee Readers and Professors unless Section 49 was suitably amended. That has not been done till now. In this connection, we can profitably refer to the decision of this Court in the case of Bal Krishna Agarwal (Dr.) v. State of U.P. In that case a Division Bench of this Court was concerned with the question whether Professors promoted by Allahabad University governed under Uttar Pradesh State University Act, 1973 could claim seniority vis-a-vis directly recruited Professors. Under Section 31 a merit promotion scheme adopted by Allahabad University was promulgated by State of Uttar Pradesh. By inserting Section 31-A in the University Act with effect from 10-10-1984 a distinct source of recruitment by way of merit promotion for Lecturers and Readers in the University was created by State Legislature. But that section which created a distinct source of recruitment by promotion was effectively brought into force from 10-10-1994. The appellant before this Court was directly appointed as Professor on 9-11-1984 while the contesting Respondents 4 and 5 were promoted as Professors under the scheme by Government Orders dated 12-12-1983 and 25-2-1984. But that section which created a distinct source of recruitment by promotion was effectively brought into force from 10-10-1994. The appellant before this Court was directly appointed as Professor on 9-11-1984 while the contesting Respondents 4 and 5 were promoted as Professors under the scheme by Government Orders dated 12-12-1983 and 25-2-1984. These respondents were treated as senior to the appellant before this Court. He unsuccessfully challenged the said fixation of inter se seniority before the High Court, as the High Court took the view that the appellant had to be relegated to the alternative remedy available under Section 68 of the Act. In appeal pursuant to leave granted by this Court, S.C. Agrawal, J. speaking for the Division Bench took the view that the appellant was entitled to be treated as senior to the promotee Professor as Section 31-A was not on the statute book when Respondents 4 and 5 were promoted and therefore, their promotions could be treated as valid only from 21-2-1985 when Section 31-A was enforced. Before that date the appellant had already entered the cadre of Professors on 11-11-1984 and therefore, he had to be treated as senior to Respondents 4 and 5. In para 13 of the report the following observations were made in this connection: (SCC pp. 621-22) “We are of the opinion that in view of the provisions contained in Section 31-A and Section 2(14) of the Act there is no escape from the conclusion that Respondents 4 and 5 could not be given promotion under the Personal Promotion Scheme till the necessary provisions prescribing the length of service and the qualifications for such promotion were made in the Statutes and since this was done by Notification dated 21-2-1985, promotion under the Personal Promotion Scheme could not be made prior to 21-2-1985. The Executive Council in its Resolution No. 198 dated 8-11-1984 had accepted the recommendations of the Selection Committee for promotion of Respondents 4 and 5 on the basis of Government Orders dated 12-12-1983 and 25-2-1984. At that time Section 31 of the Act provided for appointment of teachers by direct recruitment and did not envisage promotion from a lower teaching post to a higher teaching post. The orders of the Government aforementioned could not be given effect till necessary amendment was made in the Act making provision for personal promotion. At that time Section 31 of the Act provided for appointment of teachers by direct recruitment and did not envisage promotion from a lower teaching post to a higher teaching post. The orders of the Government aforementioned could not be given effect till necessary amendment was made in the Act making provision for personal promotion. This was done by introducing Section 31-A by U.P. Act No. 9 of 1985 with effect from 10-10-1984. But Section 31-A could be given effect only after the necessary provision was made in the Statutes prescribing the length of service and the qualifications for personal promotion. This was done by the notification dated 21-2-1985. The promotion of Respondents 4 and 5 to the grade of Professor under the Personal Promotion Scheme could, therefore, not be made prior to 21-2-1985 and it has to be treated to have been made with effect from 21-2-1985. The inter se seniority of the appellant and Respondents 4 and 5 has to be determined on that basis.” In our view the aforesaid decision of this Court is squarely applicable to the facts of the present case. As seen above in the Uttar Pradesh Act there is already an amendment by insertion of Section 31-A which provided for a distinct source of promotion. In the Vikram University Act with which we are concerned, there is no such provision. It is, therefore, to be held that till appropriate amendments are effected in the Universities Act concerned on the same lines as Section 31-A of the Uttar Pradesh Act there would be no occasion for considering the merit promotees to have entered the cadre of Reader or Professor as the case may be and consequently there would arise no occasion for consideration of the further question of fixation of inter se seniority of such ex cadre promotees and the directly recruited Readers or Professors who from the cadre concerned. 39. At this state it would also be appropriate to consider whether the promotee Readers and Professors under the merit promotion scheme as recommended by the Commission and adopted by the University concerned, in the absence of any statutory creation of a distinct and fresh source of recruitment by way of promotion, can be said to fall in the same class as directly recruited Readers or Professors. The answer becomes obvious. They cannot be said to be forming the same class. The answer becomes obvious. They cannot be said to be forming the same class. The following distinct characteristics between these two classes of employees become at once visible. (i) The directly recruited Readers and Professors fill up the vacancies in the cadres of Readers and Professors for which direct recruitment is resorted to. While the promotees under the merit promotion scheme stand outside the cadre and fill no posts as such, since no posts are created. The promotions given to them are purely personal and the posts to which they are upgraded do not survive their service career. The posts vanish with the incumbent person like the shadow vanishing with the substance. Such a promotee fills up no vacancy in the promotional avenue since no post is available by promotion........ 40. The aforesaid distinguishing features clearly indicate that merit promotee Professors and Readers form a distinct class of ex cadre or supernumerary appointees as compared to cadre employee, namely, directly recruited Readers and Professors. They are unequals not only because of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts which they hold. They cannot be treated equally for all purposes and particularly for seniority and promotion if any. For this purpose the nature of work they do is irrelevant. The competition for seniority can only be amongst those who are in the cadre posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated. For these reasons, there would be no occasion to fix inter se seniority of merit promotee Readers and Professors and directly recruited Readers and Professors by treating them as forming one class. Any decision rendered by the University concerned not to discriminate between them in the matter of inter se seniority would be invalid in the absence of any statutory creation of a distinct source of recruitment by promotion by way of amending the parent Act. As the first respondent is governed by the Act which does not contemplate any statutory source of recruitment by way of promotion, whatever sentiments might have been expressed by the Executive Committee of the University for not distinguishing between directly recruited Professors and Readers on the one hand and promotee Readers and Professors on the other hand in the matter of seniority, have no legal efficacy. On the contrary, treating them on a par for seniority and promotion is violative of Articles 14 and 16(1) as we have seen above. It must, therefore, be held that the High Court was justified in taking the view that the action of the first respondent University in fixing inter se seniority of directly recruited Professors and Readers and merit promoted Readers and Professors on the yardstick of continuous officiation was illegal and unconstitutional." 32. Thus it is seen that the Hon’ble Supreme Court after noticing the facts in the case of Dr. Bal Krishna Agarwal v. State of U.P. and others (supra) clearly emphasised that insertion of Section 31-A to the U.P. State Universities Act had made appointment by way of promotion as one of the distinct source of recruitment and has, therefore, held that such personal promotees from the same cadre of Readers/Professors like direct recruits and therefore, entitled for seniority from the date of such promotion. 33. Despite repeated quarries Counsel for the Readers, designated under the career advancement scheme, could not refer to any statutory provision under the U.P. State Universities Act, whereunder such promotion to Lecturers of Degree Colleges has been provided for as a source of recruitment. 34. It is needless to emphasis that the Hon’ble Supreme Court has specifically held that until and unless the amendments in the parent Act are made for providing promotion as a distinct source of recruitment, any Government Order providing for such promotion will not have the legal consequence of granting promotion to the cadre of Readers/Professors. The Statutes and Ordinances framed therein would be of no legal consequence. Similarly, the Statutes, which has been framed for the purposes of determination of inter se seniority of the teachers under the provisions of the State Universities Act, have also been read in like manner and inter se seniority of the teachers is to be determined with reference to the cadre strength and the mode and manner of appointment provided for under the Act itself. 35. 35. We may further emphasis that in the case of Bal Krishna Agarwal (supra) also the Hon’ble Supreme Court did not grant the benefit of seniority from the date Section 31-A was incorporated to the U.P. State Universities Act and directed that the benefits of seniority would become available only from the date amendments in the Statutes and Ordinances are made providing for the qualification/experience etc. for such promotion. Suffice it to refer to paragraph 13, which reads as follows : “13. Shri Sanyal, the learned Senior Counsel appearing for Respondent 5, has, however, urged that since the validity of appointment of Respondents 4 and 5 with effect from 9-11-1984 has not been assailed by the appellant he should not be permitted to raise this question at this stage. It is no doubt true that the validity of promotion of Respondents 4 and 5 has not been assailed by the appellant but all that he is pointing out is that in view of the provisions contained in Section 31-A of the Act the promotion of Respondents 4 and 5 under the Personal Promotion Scheme could be made only after the length of service and qualifications were prescribed by the Statutes and provisions in this regard were made in the Statutes only on 21.2.1985. In other words, what the appellant is saying is that the promotion of Respondents 4 and 5 to the grade of Professor can be regarded to have been made legally only with effect from 21-2-1985. This does not involve a challenge to the validity of their promotion but only raises the question about the date from which it can be given effect to in law. We are of the opinion that in view of the provisions contained in Section 31-A and Section 2(14) of the Act there is no escape from the conclusion that Respondents 4 and 5 could not be given promotion under the Personal Promotion Scheme till the necessary provisions prescribing the length of service and the qualifications for such promotion were made in the Statutes and since this was done by Notification dated 21-2-1985, promotion under the Personal Promotion Scheme could not be made prior to 21-2-1985. The Executive Council in its Resolution No. 198 dated 8-11-1984 had accepted the recommendations of the Selection Committee for promotion of Respondents 4 and 5 on the basis of Government Orders dated 12-12-1983 and 25-2-1984. The Executive Council in its Resolution No. 198 dated 8-11-1984 had accepted the recommendations of the Selection Committee for promotion of Respondents 4 and 5 on the basis of Government Orders dated 12-12-1983 and 25-2-1984. At that time Section 31 of the Act provided for appointment of teachers by direct recruitment and did not envisage promotion from a lower teaching post to a higher teaching post. The orders of the Government aforementioned could not be given effect till necessary amendment was made in the Act making provision for personal promotion. This was done by introducing Section 31-A by U.P. Act No. 9 of 1985 with effect from 10-10-1984. But Section 31-A could be given effect only after the necessary provision was made in the Statutes prescribing the length of service and the qualifications for personal promotion. This was done by the notification dated 21-2-1985. The promotion of Respondents 4 and 5 to the grade of Professor under the Personal Promotion Scheme could, therefore, not be made prior to 21-2-1985 and it has to be treated to have been made with effect from 21-2-1985. The inter se seniority of the appellant and Respondents 4 and 5 has to be determined on that basis.” 36. In view of Section 31-A, as added to the U.P. State Universities Act, the Hon’ble Supreme Court again in the case of Dr. Suman Agarwal v. Vice Chancellor and others, 1996(1) SCC 632 , held that the contention that the Reader appointed by personal promotion in the University was not a member of the cadre has to be rejected and in paragraph 15 of the said judgment noticed that there was no statutory source for appointment by promotion on personal promotion scheme so far as the case of Rashmi Srivastava (supra) was concerned. Therefore, in paragraph 16 it has been held that in absence of statutory amendment in the Act, personal promotees did not form part of the same cadre. Therefore, in paragraph 17 it was reiterated that there is no conflict in the view expressed by the Hon’ble Supreme Court in the case of Bal Krishna Agarwal (Dr.) v. State of U.P., vis-a-vis the case of Rashmi Srivastava. Reference may be had to paragraph 17 of the said judgment, which reads as follows : “17. Therefore, in paragraph 17 it was reiterated that there is no conflict in the view expressed by the Hon’ble Supreme Court in the case of Bal Krishna Agarwal (Dr.) v. State of U.P., vis-a-vis the case of Rashmi Srivastava. Reference may be had to paragraph 17 of the said judgment, which reads as follows : “17. The view expressed by this Court in Bal Krishna Agarwal (Dr.) v. State of U.P., is also the same, though no reference expressly was made to the above statutes. Therein this Court in para 14 had specifically stated that under the Statute, as amended by notification dated 21-2-1985, it was laid down in clause (b) of Statute 18.05 that in the same cadre inter se seniority of teachers appointed by personal promotion or by direct recruitment shall be determined according to length of service in such cadre. In that case, Dr. Bal Krishna Agarwal was appointed substantively on 9-11-1984, while Respondents 4 and 5. though appointed earlier, but as the statute came into effect from 21-2-1985. became members of the service as Professors w.e.f. 21-2-1985. Therefore, this Court held that though the respondents were promoted earlier to Bal Krishna Agarwal. they became junior to him in the cadre as Professors since Bal Krishna Agarwal was a direct recruit w.e.f. 9-11-1984. In Dr. Rashmi case, statutory source of recruitment was absent. In Dr. Rashmi case this Court observed that in the absence of similar provision like Section 31-A of the U.P. Act, as was considered in Dr. Bal Krishna Agarwal v. State of U.P., no post could have been created for promotion by way of extension of the cadre of the Readers or Professors, as the case may be. In the absence of statutory provision in the Act. Section 6 by itself could not be of any assistance to the appellant therein. Thus, this Court had pointed out that there is a specific provision in the Act to regulate the inter se seniority which was not available in Dr. Rashmi case.” 37. In the absence of statutory provision in the Act. Section 6 by itself could not be of any assistance to the appellant therein. Thus, this Court had pointed out that there is a specific provision in the Act to regulate the inter se seniority which was not available in Dr. Rashmi case.” 37. From the aforesaid what emerges is that so long as statutory amendment is not made in the parent Act providing for the personal promotion as one of the source for recruitment and further till necessary qualifications/experience required for such promotion are not provided under the Statutes/Ordinances of the University, a teacher, who is granted personal promotion under Government Order to the higher pay scale/designation, would be treated to be appointed against an ex-cadre post and will not be entitled for determination of his seniority in the cadre of Reader/Professor because of such ex-cadre promotion. 38. In view of the aforesaid settled legal position, as explained by the Hon’ble Supreme Court and there being no corresponding amendment in the State Universities Act providing for appointment of Lecturers by way of promotion under career advancement scheme on the post of Reader in affiliated Degree College and there in fact being no cadre of Reader in the Degree Colleges, we have no hesitation to hold that the designation of Reader under the career advancement scheme as per the Government Orders dated 10.9,1987 and dated 7.1.1989 is only an ex-cadre promotion and on the basis of such ex-cadre promotions no right accrues in favour of the persons so promoted to claim to be a member of the cadre of Reader/Professor contemplated by the Act and the Statutes/Ordinances of the University. The provisions of Statutes 18.10 and 18.16 and 18.05 have to be interpreted in like manner. 39. The provisions of Statutes 18.10 and 18.16 and 18.05 have to be interpreted in like manner. 39. Section 31-A as added to the U.P. State Universities Act provides for personal promotion to the post of Reader and Professor in the case of University teachers only and reads as follows : “31-A Personal promotion to Teachers of University.—(1) Notwithstanding anything to the contrary contained in any other provision of the Act, a Lecturer in the University appointed under Section 31, or a Reader in the University appointed under Section 31 or promoted under this Section, who has put in such length of service and possesses such qualifications, as may be prescribed, may be given personal promotion, respectively to the post of Reader or Professor. (2) Such personal promotion shall be given on the recommendation of the Selection Committee, constituted under clause (a) of sub-section (4) of Section 31, in such manner and subject to such conditions as may be prescribed. (3) Nothing contained in this section shall affect the posts of the teachers of the University to be filled by direct appointment in accordance with the provisions of Section 31.” 40. The section was added by U.P. Act No. 9 of 1985 and further amendments in the said Section 31-A were made by Parliament Act No. 4 of 1996. The scheme for personal promotion of Lecturers working in Degree Colleges had already been enforced, yet the legislature has not made any corresponding amendment conferring similar benefit, for promotion by career advancement in favour of Lecturers of affiliated Degree Colleges, under the U.P. State Universities Act. In absence of any statutory provision in the parent Act providing for such promotion by way of career advancement and further there being no amendments in the First Statutes and Ordinances of the University providing for qualification/experience for the post of Readers in Degree College, the judgment in the case of Rashmi Srivastava would apply with full force to the Lecturers, who have been granted personal promotion as Reader in terms of the Government Orders only. The legal principles, as explained in the case of Bal Krishna Agarwal and Suman Agarwal (supra) have also to be applied accordingly. 41. The legal principles, as explained in the case of Bal Krishna Agarwal and Suman Agarwal (supra) have also to be applied accordingly. 41. We hold that the provisions of Statute 18.16, when it makes the provisions of Statute 18.05 mutatis mutandis applicable to the teachers of recognized Degree Colleges, it only means that the seniority has to be determined with reference to the appointments made against cadre post only, as has been explained by the Hon’ble Supreme Court. 42. We may further clarify that in none of the judgment of this Court referred to by the Counsel for the petitioner i.e. Anirudh Pradhan and another v. State of U.P. and others, as well as Anirudh Pradhan v. Chancellor, Purvanchal University, Jaunpur and others, the judgments of the Hon’ble Supreme Court in the cases of Dr. Rashmi Srivastava (supra), Dr. Bal Krishna Agarwal (supra) and Dr. Suman. Agarwal (supra), which had already seen the light of the day, had been taken note of and therefore, in absence of legal position settled by the Hon’ble Supreme Court, having been considered the same, need not be followed. Moreover, the law laid down by the Hon’ble Supreme Court has to prevail in view of the Article 141 of the Constitution of India. 43. In view of the aforesaid, there is no illegality in the Government Order dated 11th September, 2006, inasmuch as it only explains the legal position, as has been settled by the Hon’ble Supreme Court of India. 44. We hold that the order of the Vice Chancellor, in so far as he declares respondent No. 5 as senior to the petitioner only because of his having deen promoted as Reader under the career advance scheme provided for under the Government Order, is legally not sustainable and is hereby quashed, The Vice Chancellor is directed to re-determine the seniority of the teachers of the affiliated Degree Colleges strictly in accordance with their length of service put in as Lecturer on substantive basis against cadre post irrespective of designation of Reader having been granted under the Government Orders dated 10.9.1987 and dated 7.1.1989 as amended from time to time. The aforesaid exercise shall be completed within a period of six weeks from the date a certified copy of this order is filed before the Vice Chancellor. 45. With the aforesaid observations/directions the present writ petition is allowed. ————