JUDGMENT Hon’ble V.K. Shukla, J.—State of U.P. through Secretary (Transport) U.P. Government Lucknow is assailing the validity of the judgement and order dated 1st September, 2015 passed by learned Single Judge in Civil Misc. Writ Petition No. 66942 of 2013 (Anil Kumar Srivastava v. State of U.P. and others) as well as the order dated 1.10.2015 passed in Modification/Review Application No. 324396 of 2015 by which the order dated 16.5.2013 passed by Transport Commissioner, U.P. Lucknow has been set aside and the writ petition has been allowed with the direction to the Competent Authority to identify the vacancies of the Goods Tax Superintendent/Passenger Tax Superintendent, which have been existing since before promulgation of U.P. Transport Department Accounts Cadre (Non-Gazetted) Service Rules, 2009 and further direction has been issued to consider promotion of petitioner-opposite party alongwith other Accountants, subject to their eligibility being posted as Accountant under their quota under the U.P. Transport Taxation (Subordinate) Service Rules, 1980 within two months. Brief background giving rise to the case is that Civil Misc. Writ A No. 66942 of 2013 (Anil Kumar Srivastava v. State of U.P. and others) was filed by the petitioner-opposite party before this Court with the following prayer : (a) a writ, order or direction in the nature of certiorari quashing the order dated 16.5.2013 passed by the Transport Commissioner, U.P., Lucknow. (b) a writ, order or direction of a suitable nature commanding the respondents to forthwith accord consideration to the petitioner for promotion as Goods/Passenger Tax Superintendent, within a period to be specified by this Court, with effect from the year 2004 with all consequential benefits thereof. (c) any other writ, order or direction as this Hon’ble Court may deem fit and proper in the circumstances of the case and (d) award cost of the petition to be paid to the petitioner. 2. In the said writ petition after exchange of pleadings, the learned Single Judge on 2nd January, 2013 allowed the Writ Petition with the direction to the Competent Authority to identify the vacancies of the Goods Tax Superintendent/Passenger Tax Superintendent, which have been existing since before promulgation of U.P. Transport Department Accounts Cadre (Non-Gazetted) Service Rules, 2009 and directed to proceed to consider the petitioner-opposite parties promotion alongwith other Accountants subject to their eligibility being posted as Accountant under their quota under the U.P. Transport Taxation (Subordinate) Service Rules, 1980 within two months. 3. 3. Pursuant to the order passed by this Court, claim of petitioner-opposite party has been considered and petitioner-opposite party’s claim has been non-suited by the Transport Commissioner U.P. at Lucknow vide order dated 16.5.2013. The said order has again been subjected to challenge in Writ Petition No. 66942 of 2013 and the said writ petition in question has been allowed and thereafter Modification/Review Application No. 324396 of 2015 has been filed and same has also been dismissed on 1.10.2015 and thus leading to preferring of present Special Appeal. Relevant facts necessary for answering the issues raised in present Special Appeal are that the Accounts Cadre and Ministerial Cadre were separated by G.O. dated 11-8-1983 and thereafter the petitioner-opposite party was appointed as Assistant Accountant on 11-7-1989 in the office of Regional Transport Officer and thereafter in view of the Government Order dated 31-8-1989, an order dated 12-9-1995 has been passed by the Additional Transport Commissioner, U.P. Lucknow upgrading the pay scale as well as the post of the petitioner-opposite party from the date of his first joining i.e. 11-7-1989 as the post of Accountant in the place of Assistant Accountant and the pay scale of Rs. 1400-2600 (Revised Rs. 5500-9000 by G.O. dated 27-7-2006) at the place of pay scale of Rs. 1200-2040 was approved to be paid to the petitioner-opposite party and thereafter by the order dated 20-04-2010, the petitioner-opposite party was confirmed on the post of Accountant. Since the petitioner-opposite party was appointed in Accounts Cadre, separated by G.O. dated 11-8-1983, hence as per appellants promotion admissible to him in view of the G.O. dated 11-8-1983 was to be considered under U.P. Transport Department Account Cadre (Non Existed) Service Rule 2009) and not at all in view of provisions of the UP. Transport Taxation (Subordinate) Service Rules, 1980, as keeping in view the provisions of Rule 17 of the UP. Transport Taxation (Subordinate) Service Rules, 1980, as keeping in view the provisions of Rule 17 of the UP. Transport taxation (Subordinate) Service Rules, 1980, for promotion on the post of Passenger Tax Superintendent/Goods Tax Superintendent, Section Incharge and Stenographer of Transport Commissioner Office, Noter and Drafter, Head Clerk and Head Clerk cum Accountant and Stenographer in the Regional Offices in order of seniority as determined on the basis of date of their substantive appointment are to be considered, and as petitioner-opposite party was not working as Head Clerk cum Accountant but was working as Accountant only hence he could not be promoted on the post of Passenger Tax Superintendent/Goods Tax Superintendent. In the seniority list published for the post of Head Clerk/Head Clerk cum Accountant, the name of petitioner-opposite party has not found place since the petitioner-opposite party was not appointed as Junior Clerk/Assistant Cashier/Cashier Grade-II/Typist as per the apellants, therefore petitioner cannot be promoted on the post of Head Clerk/Head Clerk cum Accountant as he is not eligible for the promotion on the post of Passenger/Goods Tax Superintendent under the provisions of UP. Transport Taxation (Subordinate) Service Rules 1980. Appellants’ claim that in-fact the petitioner-opposite party’s name finds place at serial No. 799 in combined seniority list of Accountants prepared and published on 22-3-2010 for promotion on the post of Assistant Accounts Officer, as after issuance of the Government Order dated 11-8-1983, the petitioner-opposite party and other 5 candidates were directly appointed on 11-7-1989 in Accounts Cadre as Assistant Accountant and thereafter in compliance of the Government Order dated 31-8-1989, an order dated 12-9-1995 was passed upgrading the post of the petitioner-opposite party as Accountant and pay scale as Rs. l400-2600 (revised Rs. 5500-9000 by G.O. dated 27-7-2006) from the date of petitioner-opposite party’s initial joining. Appellants submit that when the petitioner-opposite party on one hand has received the benefit under the G.O. dated 11-8-1983 and 31-8-1989, then, he cannot claim his promotion on the post of Goods Tax Superintendent/Passenger Tax Superintendent and thereafter Goods Tax Officer/Passenger Tax Officer. Appellants submit that the provisions of UP. Transport Department Accounts Cadre (Non-Gazetted) Rules 2009 and the UP. Appellants submit that when the petitioner-opposite party on one hand has received the benefit under the G.O. dated 11-8-1983 and 31-8-1989, then, he cannot claim his promotion on the post of Goods Tax Superintendent/Passenger Tax Superintendent and thereafter Goods Tax Officer/Passenger Tax Officer. Appellants submit that the provisions of UP. Transport Department Accounts Cadre (Non-Gazetted) Rules 2009 and the UP. Government Department Subordinate Accounts Cadre (Non Gazetted) Service Rules, 2014 would be applicable upon the petitioner-opposite party and by no stretch of imagination, petitioner-opposite party could claim promotion as has been claimed on the post of Goods Tax Superintendent/Passenger Tax Superintendent, which has been under U.P. Transport Taxation (Subordinate) Service Rules, 1980. 4. Shri C.B. Yadav, learned Advocate General/Senior Advocate assisted by Shri Vivek Shandilya, Advocate submitted with vehemence that, on its face value, the petitioner-opposite party cannot be accorded promotion on the post of Goods Tax Superintendent/Passenger Tax Superintendent, inasmuch as, under U.P. Transport Taxation (Subordinate) Service Rules, 1980, the feeder cadre comprises of Head Clerks, Head Clerk cum Accountant and Stenographers and once accepted position is that petitioner-opposite party’s appointment is as Accountant and he does not fall in the feeder cadre, then in such a situation and in this background, such a directive could not have been given by the Learned Single Judge as has been done in the present case. 5. Shri Siddharth Khare, Advocate, on the other hand, contended that rightful directions have been issued, the matter inter-se parties has proceeded to attain finality, in view of this, this Court should not interfere in the matter. 6. Earlier petitioner-opposite party has been before this Court preferring Writ Petition No. 20334/2012 (Anil Kumar Srivastava v. State of U.P. and others) and this Court in its judgement dated 2nd January, 2013 has proceeded to pass an order directing the Authorities to re-consider the claim of petitioner-opposite party for promotion under Rule 5 (iii) of the U.P. Transport Taxation (Subordinate) Service Rules 1980 from the post of Accountant to the post of Passenger/Goods Tax Superintendent afresh within a period of three months. Consideration has been done and as petitioner-opposite party has neither been Head Clerk nor Head Clerk cum Accountant and accordingly his claim in question has been turned down but the Learned Single Judge has proceeded on the premises that such a claim cannot be non-suited on the ground as it has been non-suited and writ petition in question has been once again allowed. 7. Promotion cannot be claimed as a matter of right, nor it is condition of service, however an eligible person has a right to be considered for promotion strictly in accordance with law, provided there are avenues of promotion provided for. Consideration of candidature for promotion has been held to be a fundamental right but this much is also equally well-settled that before one proceeds to claim promotion on the post of Goods Tax Superintendent/Passenger Tax Superintendent, he has to be there in the feeder cadre and in this backdrop, we proceed to quote Rule 5(iii) of U.P. Transport Taxation (Subordinate) Service Rules 1980: 5(iii) Passenger/Goods Tax Superintendents.—(i) By direct recruitment through the Commission. (ii) By promotion through the Commission from amongst- (a) the permanent Section-in Charges Noter, and Drafters and Stenographers of Transport Commissioner’s Office who have put in at least five years of continuous service as such; and (b) the permanent Head Clerks, Head Clerk-cum-Accountants and Stenographers in the Regional Transport Offices, who have put in at least five years of continuous service as such: Provided that, as far as possible, the recruitment shall be arranged that 50 per cent posts in the cadre are held by direct recruits, and rest by the promotion as follows- (a) Section in Charge and Noter and Drafters-15 per cent. (b) Stenographers in Transport Commissioner’s Office.-7 per cent (c) Head Clerks and Head Clerk-cum-Accountants-14 per cent. (d) Stenographers in Regional Offices-14 per cent.” 8. U.P. Transport Taxation (Subordinate) Services Rules, 1980 (herein after referred to as the Rules of 1980) provides for appointment on the post of Passenger/Goods Tax Superintendent. Under Rule 5(iii) of the aforesaid Rules, 50% of the post of Passenger/Goods Tax Superintendent is required to be filled up by direct recruitment and 50% by promotion. U.P. Transport Taxation (Subordinate) Services Rules, 1980 (herein after referred to as the Rules of 1980) provides for appointment on the post of Passenger/Goods Tax Superintendent. Under Rule 5(iii) of the aforesaid Rules, 50% of the post of Passenger/Goods Tax Superintendent is required to be filled up by direct recruitment and 50% by promotion. The said Rule further provides that amongst the 50% seats to be filled by promotion, 15% are required to be filled by Section Officers and Noter Drafters 7% by the stenos from the office of Transport Commissioner and 14% from Head Clerks and Head Clerks-cum-Accountants and 14% by Stenographers from the regional office. The Rule further provide that the candidate should be in service for 5 years. 9. A bare perusal of the Rules quoted above further would go to show that 14% of vacancies for the post of Goods Tax Superintendent/Passenger Tax Superintendent is required to be filled up from amongst Head Clerks and Head Clerk cum Accountant. This much is accepted position that selection and appointment of petitioner-opposite party Assistant Accountant and thereafter in consonance with the Government Order, petitioner-opposite party has been designated as Accountant from the date of his appointment and accordingly has become member of the Accountant Cadre and has been extended all the benefits attached to the same. The fact of the matter is that at no point of time, petitioner-opposite party has ever been appointed as Head Clerk or Head Clerk cum Accountant. 10. For the Accounts cadre, U.P. Transport Department Accounts Cadre (Non-Gazetted) Service Rules 2009 has been promulgated in which there is a provision for promotion on the post of Senior Accountant from the post of Accountant, in addition to it, Accountant posted in other departments of the State Government are promoted on the post of Assistant Accounts Officer on the basis of combined seniority list and for Accounts Cadre U.P. Government Department Subordinate Account Cadre (Non-Gazetted) Service Rules, 2014 has been promulgated and the posts of Passenger/Goods Tax Superintendent have been merged with the post of Passenger/Goods Tax Officer and the vacant posts of Passenger/Goods Tax Superintendents have been abolished and at present the post of Passenger/Goods Tax Superintendent is not at all in existence and accordingly, the Assistant Accountant/Accountant is not feeding cadre for the promotion on the post of Passenger/Goods Tax Superintendent under the UP. Transport Taxation (Subordinate) Service Rules, 1980, but in view of the provisions of UP Transport Department Ministerial Service Rules, after the appointment through direct recruitment on the post of Junior Clerk/Assistant Cashier/Cashier Grade II/Typist, the next promotional post is Senior Clerk/Accountant/Cashier Grade-I, second promotional post is Head Clerk, Head Clerk cum Accountant and thereafter the Head Clerk/Head Clerk cum Accountant are eligible for promotion on the post of Passenger/Goods Tax Superintendent. 11. Decision to merge the cadre and bifurcate the cadre is exclusive domain of State. It is for the State to decide as to which cadres should be merged and which of the cadre be bifurcated. Apex Court in the case of Bihar State Government Secondary School Teachers Association v. Bihar Education Service Association, 2012(13) SCC 33 , following its earlier judgement in the case of S.P. Shivprasad Pipal v. Union of India, 1998 (4) SCC 598 , has held that merger of cadre is a matter of policy and said exercise may affect the prospects of some employee but same cannot be ground to interfere with the said policy decision. Here instead of merger of cadre, bifurcation of cadre has been done, petitioner-opposite party has reaped the entire benefit of said bifurcation, new rules providing avenue of promotion has been enforced. Then petitioner-opposite party cannot be permitted to take U-turn by staking his claim for promotion against such posts that are not meant for him. Once such is the factual situation that is so emerging petitioner-opposite party has never ever been appointed as Head Clerk or Head Clerk cum Accountant and does not form part of the feeder cadre in question as is provided for under U.P. Transport Taxation (Subordinate) Service Rules 1980, then in our considered opinion this Court could not give directions that run counter/contrary to the Rules in question, in view of this, we are not at all approving of the order passed by the Learned Single Judge on the Review Application as well as on the Writ Petition. The petitioner-opposite party cannot be directed to be considered for promotion on the post of Goods Tax Superintendent/Passenger Tax Superintendent as under Rule 5(iii) of the aforesaid Rules one has to hold the post of Head Clerk and Head Clerk cum Accountant and admittedly, petitioner-opposite party is not falling within the fold of two posts in the feeder cadre. 12. With these Special Appeal is allowed.