JUDGMENT By the Court.—Learned Additional Chief Standing Counsel for appellants is present. None has appeared on behalf of respondents though called in revised. Hence we proceed to decide appeal after hearing counsel for appellants only. 2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as “Rules, 1952”) has arisen from judgement dated 2.12.2004 in writ petition No. 22388 of 2001 (Gyan Prakash Pathak v. State of U.P. and others) passed by learned Single Judge directing appellants to promote petitioner-respondent on Class III post and pay him regular salary. 3. It is contended that promotion in Class III from Class IV is provided to the extent of 15% and 20% depending upon qualification of Class IV employees but procedure for promotion is on merit which is determined by holding a Written test, Typing test and Interview and without holding aforesaid test, even if a person, working in Class IV, possesses requisite qualification for promotion of Class III, automatically he cannot claim promotion in Class III. 4. Petitioner-respondent was appointed a Class IV employee on ad-hoc basis on 12.5.1982 at Pauri Garhwal. Therefrom he was transferred to office of Regional Transport Officer, Allahabad and joined thereat on 21.9.1983. He was regularized on Class IV post under U.P. Regularization of ad-hoc Appointments (Posts Outside the Purview of the Public Service Commission) Rules, 1979 (hereinafter referred to as “Rules, 1979”). Claiming that he is entitled to be considered for promotion against 10% vacancies reserved for class IV employees for promotion in Class III, under U.P. Transport Department Ministerial Service Rules, 1980 (hereinafter referred to as “Rules, 1980”), he filed writ petition No. 46371 of 1999 which was decided vide judgement dated 10.1.2001 with the following directions: “In view of the above discussion, no writ in the nature of writ of mandamus as prayed for by the petitioner can be issued. The petitioner, however, is finally disposed of with the direction that as and when there are vacancies in class III cadre in the Allahabad Regional and recruitment in accordance with the provisions of Rules of 1980 takes place, the case of the petitioner, who is senior most in class IV cadre in Allahabad Region, shall be considered against the promotional quota according to rules. There is no order as to costs.” 5. There is no order as to costs.” 5. Claim of petitioner-respondent was rejected by Regional Transport Officer (hereinafter referred to as ‘R.T.O.’) by order dated 12.3.2001 holding that there was no vacancy of Class III wherein petitioner-respondent could have been considered for promotion. It is this order which was challenged in writ petition No. 22388 of 2001 and has been decided vide judgement dated 2.12.2004. Learned Single Judge has directed appellant to straightaway promote petitioner-respondent on Class III post, forthwith, and pay him salary. 6. Learned Single Judge has examined issue of availability of vacancies and recorded a finding that against 411 posts only 391 are working and there is a shortfall of 20. It has also recorded a finding that 174 persons were fraudulently appointed on 1997 hence were terminated but on the basis of interim orders from Court they are working but said 174 persons cannot be said to hold any cadre post unless termination is set aside and hence there was shortfall of 20. 7. We do not proceed to examine the question of vacancies and instead we are examining correctness of direction given by learned Single Judge for giving straightaway promotion to petitioner-respondent on Class III post without examining whether he has been considered and selected for such promotion from Class IV to Class III in accordance with Rules, 1980. 8. Under Rules, 1980 various categories of posts are divided on the basis of ‘Headquarter’ and ‘Regional or Zonal offices’ i.e. Zonal Deputy Commissioner or Regional Transport Officer. Rule 3(a) of Rules, 1980 defines ‘Appointing Authority’ and reads as under: “(a) “Appointing Authority”- (i) in respect of the posts of Head Clerk, Head Assistant, Senior Auditor, Statistical Assistant (Grade-I) and Stenographer (Selection Grade) at the Headquarters means the Transport Commissioner and in respect of the other posts at the Headquarters, means the Additional Transport Commissioner; and (ii) in respect of the posts of Junior Clerk/Typist, Assistant Cashier, (Grade-II) in Regional or Zonal Offices means the Zonal Deputy Transport Commissioner or the Regional Transport Officer in respect of the posts in their offices and, in respect of the other posts in the Zonal or Regional Offices, means the Additional Transport Commissioner.” (emphasis added) 9. Post of Lower Division Clerk/Junior Clerk, Typist in Transport Commissioner’s Office is 100% by direct recruitment and there is no provision of any promotion. Post of Lower Division Clerk/Junior Clerk, Typist in Transport Commissioner’s Office is 100% by direct recruitment and there is no provision of any promotion. However in Zonal or Regional offices, source of recruitment to posts of Junior Clerk/Assistant Cashier/Cashier Grade II/Typists is direct recruitment but 10% of vacancies are to be filled in by appointing authority from amongst High School pass employees of said office in accordance with orders, issued from Government from time to time. Rule 5(2)(i) of Rules 1980 reads as under: “5(2)(i) Posts Sources of Recruitment (I) Junior Clerk/Assistant Cashier/Cashier Grade By direct recruitment (II) Typists Provided that 10 per cent vacancies in an office may be filled by the appointing authority from amongst the High School pass employees of the said office in accordance with the orders, issued by the Government from time to time.” 10. Part 5 of Rules 1980 provides details of procedure for recruitment. Rules 15 provides procedure for direct recruitment to posts of Lower Division Clerk/Typist which reads as under: “15. Procedure for direct recruitment to the posts of Lower Division Clerk/Typists.—Recruitment to the posts of Lower Division Clerks, Junior Clerk and Typist in the Transport Commissioner’s Office and the posts of Junior Clerk/Assistant Cashier/Cashier (Grade II) Typist in the Zonal and Regional Offices shall be made in accordance with the procedure laid down in the Subordinate Offices Ministerial Staff Direct Recruitment Rules, 1975.” 11. Since 10% promotion from High School pass employees provision has been made as per various Government orders issued from time to time, it takes us to Government order dated 1.1.1970 and issued thereafter which lay down quota and procedure for promotion of Class IV to Class III post. 12. Since 10% promotion from High School pass employees provision has been made as per various Government orders issued from time to time, it takes us to Government order dated 1.1.1970 and issued thereafter which lay down quota and procedure for promotion of Class IV to Class III post. 12. We may note here at that first Government order in this regard was issued on 1.1.1970 and procedure for promotion of Class IV to Class III post laid down therein reads as under: ^^Øe la[;k&1 mRrj izns'k 'kklu fu;qfDr ¼[k½ foHkkx la[;k 37&1&69&fuqfDr ¼[k½ y[kuÅ] fnukad 1 tuojh] 1970 dk;kZy;&Kki fo"k;&oxZ 4 ds deZpkfj;ksa ds fy, oxZ 3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa vkj{k.kA 1- 'kklu us ;g fu.kZ; fy;k gS fd fdlh dk;kZy; esa izR;sd o"kZ oxZ 3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa gksus okyh LFkk;h ,oa ,d o"kZ ls vf/kd vof/k rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ 4 ds gkbZ Ldwy vFkok mlds led{k ekU;rk izkIr ijh{kk ikl LFkk;h deZpkfj;ksa ds fy,] ftudh vk;q 45 o"kZ ls vf/kd u gks] inksUufr }kjk nl izfr'kr vkj{k.k iznku fd;k tk;sxkA ,slh inksUufr ds fufeRr oxZ 3 ds inksa ij HkrhZ ftl dk;kZy; esa gksuh gks mlh dk;kZy; esa dke djus okys oxZ 4 ds deZpkfj;ksa ds ekeyksa esa fopkj fd;k tk;sxkA fdUrq ;fn fdlh ftys esa dksbZ u, dk;kZy; dks [kksyk tk; rks ml dk;kZy; esa oxZ 3 ds fuEure Js.kh ds 10 izfr'kr inksa ij HkrhZ ds fy, mifjfyf[kr 'krksZ ds v/khu oxZ 4 ds lHkh LFkkuh; deZpkfj;ksa ds ekeys esa fopkj fd;k tk;sxkA fjfDr;ksa ds de gksus dh n'kk esa inksUufr dk Øe ;g jgsxk fd izR;sd 9 fu;qfDr;ksa ds ckn ,d fu;qfDr inksUufr }kjk dh tk;sxhA 2- vkjf{kr fjfDr;ksa ds fy, pquko Js"Brk ds vk/kkj ij ,d lk/kkj.k ijh{kk ysdj rFkk lk{kkRdkj djds fd;k tk;sxkA ijh{kk esa dsoy ,d iz'u&i= gksxk ftles nks loky gksaxs&,d fdlh ljy fo"k; ij fgUnh fuca/k vkSj nwljk lkekU; KkuA pquko ds fy, dqy 50 vad gksaxs] ftudk fooj.k fuEufyf[kr gS %& ¼d½ fyf[kr ijh{kk 30 vad ¼izR;sd iz'u ds 15 vad½ ¼[k½ lk{kkRdkj 10 vad ¼x½ pfj= iath 10 vad dqy 50 vad tgka dsoy Vad.k ¼VkbZfiLVksa½ ds laoxZ esa gh HkrhZ dh tkuh gks] ogkWa ij Vkbi dh Hkh ijh{kk yh tk;sxhA 3- ;g vkns'k efU=ifj"kn~ dh Lohd`fr ls tkjh fd, tk jgs gSaA vr% orZeku fu;eksa esa] ;fn dksbZ gksa] eaf+=ifj"kn~ dh iqu% Lohd`fr fy, fcuk rn~uqlkj la'kks/ku dj fy;k tk;A v'kksd dqekj eqLrQh vk;qDr ,oa lfpoA** “Serial No. 1 Government of Uttar Pradesh Niyukti (Kha) Vibhag No. 37-1-69-Niyukti (Kha) Lucknow, dated: 1st January, 1970 OFFICE MEMORANDUM Subject: Reservation for Class-IV employees in the lowest category of Class-III clerical posts. It has been decided by the Government that in the permanent vacancies or the temporary vacancies likely to continue for more than a year, occurring each year in any office in the lowest category of Class-III Clerical posts, 10% reservation shall be given by way of promotion to the permanent employees having passed High School or any examination recognised to be equivalent thereto and not being above 45 years of age. Class-IV Employees of the same office shall be considered for promotion where recruitments to Class-III posts are to take place. But if any new office is opened in any district, all the Class-IV local employees shall be considered for recruitments to 10% posts of the lowest category of Class-III in that office subject to the afore-mentioned conditions. In case of vacancies being a few, promotion shall be such that after every 9 appointments, one appointment shall be made by way of promotion. 2. For reserved vacancies, selection shall be made on the basis of merit by holding an ordinary examination and interview. In the examination, there shall be just one paper having two questions - one shall be a Hindi essay on any simple subject and the other one, general knowledge. For the purpose of selection, there shall be total 50 marks breakup whereof is as under: A. Written Examination 30 marks (15 marks for each question) B. Interview 10 marks C. Character Role 10 marks Total 50 marks Where recruitments are to take place in the cadre of typists, a type test shall also be taken there. 3. These orders are being issued with the approval of the cabinet. Hence, amendments in the existing rules, if any, be accordingly made without further approval of the cabinet. Ashok Kumar Mustafi Commissioner and Secretary” (English Translation by Court) 13. A perusal of aforesaid G.O. makes it clear that promotion to Class-III from Class-IV is founded on a written test, interview and assessment of service record of concerned Class-IV employee. 14. Hence, amendments in the existing rules, if any, be accordingly made without further approval of the cabinet. Ashok Kumar Mustafi Commissioner and Secretary” (English Translation by Court) 13. A perusal of aforesaid G.O. makes it clear that promotion to Class-III from Class-IV is founded on a written test, interview and assessment of service record of concerned Class-IV employee. 14. Another G.O. was issued on 21.8.1976 which reads as under: ^^Øe la[;k&2 la[;k 37@1@1969&dkfeZd&2 dkfeZd vuqHkkx ¼2½ y[kuÅ] fnukad 21 vxLr] 1976 fo"k;&oxZ&4 ds deZpkfj;ksa ds fy, oxZ&3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa vkj{k.kA egksn;] eq>s vkidk /;ku dk;kZy; Kki la[;k 37@1@1969&fuqfDr ¼[k½] fnukad 1 tuojh] 1970 dh vksj vkd`"V djus dk funsZ'k gqvk gS ftlesa ;g funsZ'k izlkfjr fd;s x;s Fks fd fdlh dk;kZy; esa izR;sd o"kZ oxZ&3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa gksus okyh LFkk;h ,oa ,d o"kZ ls vf/kd vof/k rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ&4 ds gkbZ Ldwy vFkok mlds led{k ekU;rk izkIr ijh{kk ikl LFkk;h deZpkfj;ksa ds fy, ftudh vk;q 45 o"kZ ls vf/kd u gks] inksUufr }kjk nl izfr'kr vkj{k.k iznku fd;k tk;sxkA mijksDr vkns'kksa dk vkaf'kd la'kks/ku djrs gq, vc 'kklu us ;g fu.kZ; fy;k gS fd ftl deZpkjh us prqFkZ Js.kh ds in ij ikap o"kZ rd fujUrj lsok dj yh gks] pkgs og LFkk;h gks vFkok vLFkk;h] fyfid oxhZ; fuEure Js.kh ds inksa ij inksUufr ikus ds fy, vgZ gksxk ;fn og gkbZ Ldwy vFkok mlds led{k dksbZ vU; ijh{kk mRrh.kZ gks rFkk 45 o"kZ ls vf/kd vk;q dk u gksA vk;qDr ,oa lfpoA** “Serial No. 2 No. 37/1/1969/Kaarmik-2 Karmik Anubhag (2) Lucknow, dated : 21st August, 1976 Subject: Reservation for Class-IV employees in the lowest category of Class-III clerical posts. Sir, I have been directed to draw your attention towards Office Memorandum No. 37/1/1969-Niyukti(Kha), dated 1st January, 1970 circulating a direction that in the permanent vacancies or the temporary vacancies likely to continue for more than a year, occurring each year in any office in the lowest category of Class-III clerical posts, 10% reservation shall be given by way of promotion to the permanent employees having passed High School or any examination recognised to be equivalent thereto and not being above 45 years of age. By partially modifying the aforesaid orders, the Government has now decided that an employee who has completed 5 years of continuous service on Class-IV post, whether he/she is permanent or temporary, shall be eligible for being promoted to a clerical post of the lowest category, if he/she has passed High School or any other examination equivalent thereto and has not exceeded the age of 45. Commissioner & Secretary” (English Translation by Court) 15. Thus, G.O. dated 21.8.1976 only had the effect of amending G.O. dated 1.1.1970 to the extent that all Class-IV employees, who have rendered five years service, whether permanent or temporary, would be eligible to be considered for promotion to Class-III vacancies provided he has passed High School or any equivalent examination and not above 45 years. 16. Then third G.O. was issued on 19.5.1979 modifying order dated 21.8.1976 and limitation for promotion with respect to age was taken away. 17. Then G.O. dated 31.8.1982 was issued enhancing quota for promotion from 10 per cent to 15 per cent but process of selection for promotion continued to include written test, interview and assessment of service record. 16. Then third G.O. was issued on 19.5.1979 modifying order dated 21.8.1976 and limitation for promotion with respect to age was taken away. 17. Then G.O. dated 31.8.1982 was issued enhancing quota for promotion from 10 per cent to 15 per cent but process of selection for promotion continued to include written test, interview and assessment of service record. G.O. dated 31.8.1982 is quoted as under: ^^Øe la[;k&3 la[;k 37@1@1969&dkfeZd&2 dkfeZd vuqHkkx&2 y[kuÅ fnukad 31 vxLr 1982 bZŒ fo"k;&oxZ&4 ¼vc lewg ^?k*½ ds deZpkfj;ksa ds fy, oxZ&3 ¼vc lewg ^x*½ ds fuEure Js.kh ds fyfidh; inksa esa vkj{k.kA egksn;] mi;qZDr fo"k;d lela[;d 'kklukns'kksa] fnukad 1 tuojh] 1970] 21 vxLr] 1976 o 19 ebZ] 1979 ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd bl izdj.k ij f}rh; osru vk;ksx dh fjiksVZ esa dh xbZ laLrqfr dks /;ku esa j[krs gq, leqfpr :i ls fopkjksijkUr 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd oxZ&4 ds fy, oxZ 3 ds fuEure Js.kh ds fyfidh; inksa esa vkj{k.k dh la[;k 10 izfr'kr ls c<+kdj 15 Áfr'kr dj nh tk;A vr,o mDr 'kklukns'kksa ds Ákfo/kkuksa dks lek;ksftr djrs gq, bl Ádj.k esa v|of/kd fLFkfr gksxh %& izR;sd o"kZ oxZ&3 ds fuEure {ks.kh ds fyfidh; inksa esa gksus okyh lh;h ,oa ,d o"kZ ls vf/kd vof/k rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ&4 ds gkbZ Ldwy vFkok mlds led{k ekU;rk izkIr ijh{kk ikl ,sls lh;h@vLFkk;h deZpkfj;ksa ds fy, ftUgksaus prqFkZ Js.kh ds in ij ikap o"kZ dh fujUrj lsok dj yh gks] inksUufr }kjk 15 izfr'kr dk vkj{k.k iznku fd;k tk;sxkA ,slh inksUufr ds fufeRr oxZ&3 ds inks ij HkrhZ ftl dk;kZy; esa gksuh gks mlh dk;kZy; esa dke djus okys oxZ&4 ds deZpkfj;ksa ds ekeyksa ij fopkj fd;k tk;sxk] ijUrq ;fn fdlh ftys esa dksbZ u;k dk;kZy; [kksyk tk; rks ml dk;kZy; esa oxZ&3 ds fuEure Js.kh ds fyfidh; inksa esa ls 15 izfr'kr inksa ij HkrhZ ds fy, mfYyf[kr 'krksZ ds v/khu oxZ&4 ds lHkh LFkkuh; deZpkfj;ksa ds ekeys esa fopkj fd;k tk;sxkA vkjf{kr fjfDr;kas ds fy, pquko Js"Brk ds vk/kkj ij ,d lk/kkj.k ijh{kk ysdj rFkk lk{kkRdkj djds fd;k tk;sxkA ijh{kk esa dsoy ,d iz'u&i= gksxk ftlesa nks loky gksaxs] ,d fdlh ljy fo"k; ij fgUnh fucU/k vkSj nwljk lkekU; KkuA pquko vadksa dk fooj.k fuEuor~ gS %& ¼d½ fyf[kr ijh{kk 30 vad ¼izR;sd iz'u ds 15 vad½ ¼[k½ lk{kkRdkj 10 vad ¼x½ pfj= iath 10 vad dqy 50 vad tgka dsoy Vad.k ¼VkbZfiLVksa½ ds laoxZ esa gh HkrhZ dh tkuh gks] ogkWa ij Vkbi dh Hkh ijh{kk yh tk;sxhA 3- d`i;k mDr vkns'kksa dk vuqikyu lqfuf'pr fd;k tk; rFkk orZeku fu;eksa esa] ;fn dksbZ gksa] rn~uqlkj la'kks/ku djus ij fopkj dj fy;k tk; ,oa vko';d dk;Zokgh lqfuf'pr dh tk;A** “Serial No. 3 No. 37/01/1969-Personnel-2 Personnel Section-02 Lucknow: Dated: 31 August, 1982 Subject: Reservation for Class-IV employees (now Group D) in the lowest category of clerical posts in Class-III (nowGroup C). Sir, With reference to even numbered Government Orders dated 1st Jan, 1970, 21st August, 1976 and 19th May, 1979 on the above-mentioned subject; I am directed to say that after due consideration of the recommendations made, in the instant matter, by the Second Pay Commission report, it has been decided by the Government that the reservation for Class-IV employees in the lowest category of class-III clerical posts be enhanced from 10 percent to 15 percent. Assimilating the provisions of the aforesaid Government Orders, the updated status in the instant matter shall be as under: In the permanent vacancies occurring in the lowest category of class-III clerical posts and in the temporary vacancies running for more than one year, 15 percent reservation shall be given by way of promotion to those permanent and temporary employees who have successfully passed High School or any examination recognised equivalent thereto and have completed continuous service of five years on a Class-IV post. For these promotions, the cases of the Class-IV employees of that very office shall be considered where the recruitments to the Class-III posts are to take place; but if a new office is being opened in any district, the cases of all local Class-IV employees, subject to the aforesaid conditions, shall be considered for the recruitment to 15 percent of the lowest category clerical posts of that office. Selections to the vacant posts shall be made on the merit basis by holding an ordinary examination and interview. For the examination, there will be only one paper containing two questions wherein one question will be essay writing in Hindi on a simple subject, and the other one, general knowledge. The break-up of the selection marks is as under: A. Written Examination 30 marks (15 marks for each question) B. Interview 10 marks C. Character Role 10 marks Total 50 marks Where recruitments are to take place only in the typists’ cadre, a type test will also be conducted. 2. The compliance of the aforesaid orders may kindly be ensured; and accordingly, amendment in the existing rules, if any, be considered, and necessary action be ensured.” (English Translation by Court) 18. The aforesaid G.Os. make it very clear that for promotion of a Class III employee to the extent vacancies are reserved in Class-III, selection has to be made on the basis of a written test, interview and assessment of character roll. The aforesaid G.Os. make it very clear that for promotion of a Class III employee to the extent vacancies are reserved in Class-III, selection has to be made on the basis of a written test, interview and assessment of character roll. In the present case, since aforesaid procedure of selection has not been observed, we find it difficult that petitioner-respondent could have been straightaway given promotion to Class III without undergoing procedure as provided under Rules, 1980 read with relevant Government orders as referred to hereinabove. 19. In view thereof, direction of learned Single Judge to the extent it has provided that petitioner-respondent shall be promoted in Class III forthwith and pay him regular salary, cannot be sustained. 20. Appeal is accordingly allowed. Judgement of learned Single Judge to the extent it has issued direction to appellant to promote petitioner-respondent on Class III post forthwith and pay salary is hereby set aside. However we maintain findings with regard to vacancies that there is shortfall of 20 and direct appellants to proceed to make selection for promotion of Class IV employee to Class III in accordance with aforesaid Government orders read with Rule 5(2) of Rules, 1980, and complete the process within six months.