JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri S.S.L. Srivastava, learned counsel for petitioner, learned Standing Counsel for respondent-1, Sri Amit Chandra, learned counsel for respondent-11 and Sri Vidhu Bhushan Kalia, learned counsel for respondent-7. 2. This writ petition under Article 226 has been filed challenging promotion order dated 10.11.2000 issued by Chairman/Principal Secretary (Education), U.P. Government, Lucknow, in his capacity as Director, State Council of Education, Research and Training, U.P. Lucknow (hereinafter referred to as “SCERT”), promoting respondents-4 and 5 as Lecturer (Faculty Promotion) and respondents-9 and 10 as Production Assistant. It has also sought a relief requiring respondents-1, 2 and 3 to produce promotion orders of respondent-6 to 8 and 11 to 17 and to quash the same. 3. Petitioner has also sought a writ of mandamus commanding respondents to promote him against post of Engineering Assistant. 4. Respondents-4 to 17 were appointed by Director, SCERT, on various posts. One of such appointment letter dated 19.3.1986 relating to respondents-4 and 5 appointing them as “Script Writer” in the pay-scale of Rs. 625-1240/- has been filed as Annexure 2 to writ petition. 5. It is said that petitioner and respondents-4 to 17 are State Government employees. SCERT was subsequently made an autonomous body by registering it as a “Society” formed by State Government but no option was ever obtained from petitioner or respondents-4 to 17 to make them employees of “Society” and to cease their status as “public servant”. 6. It is said that Chairman of Society could not make any appointment/promotion in SCERT, hence aforesaid appointments/promotions of respondents-4 to 17 are illegal. 7. Though private respondents have contested writ petition by filing affidavits, but basic issue since pertains to status of petitioner and respondents-4 to 17 as also that of SCERT whether that of Government servant or that of Society, therefore, Court directed State of U.P. to file an affidavit making it clear as to manner in which SCERT was created and what is its status. 8. Respondent-3 has filed a counter-affidavit sworn by Sarvendra Vikram Bahadur Singh, Director, SCERT. It is said that SCERT was established vide Government Order dated 11th September 1981. However, copy of order dated 11.9.1981 shows that State Government in fact created certain posts for functioning of SCERT and details of posts which were created temporarily up to 28.2.1982 are as under : Sr. No. Posts Pay-scale Number of posts 1. Director 2250-100-2750 1 2. It is said that SCERT was established vide Government Order dated 11th September 1981. However, copy of order dated 11.9.1981 shows that State Government in fact created certain posts for functioning of SCERT and details of posts which were created temporarily up to 28.2.1982 are as under : Sr. No. Posts Pay-scale Number of posts 1. Director 2250-100-2750 1 2. Personal Assistant 550-25-625-da-ro-25-750 1 3. Stenographer 300-8-340-da-ro-10-440-da-ro-12-500 1 4. Driver 175-3-205-da-ro-4-225-da-ro-5-250 1 5. Peon 165-2-185-da-ro-3-215 1 9. Aforesaid order also states that regarding constitution of SCERT and other policy matters, separate orders shall be issued. Meaning thereby, when Government Order dated 11.9.1981 was issued, SCERT was yet to be constituted but for its functioning post of Director and other attending subordinate posts were created. 10. By another Government Order dated 10th November 1981, Director, SCERT was declared Head of Department for the purpose of exercising financial powers as required under Financial Rules, Volume 2 (part 2 to 4), Volume 3 and Volume 5 (part-1) and Uttar Pradesh Budget Manual. 11. SCERT was constituted by Government Order dated 13.8.1983 by notifying its constitution, consisting of a Chairman and four members as under : “1. Director, State Council of Educational Research and Training - President 2. Additional/Joint Director, State Council of Educational Research and Training - Member 3. Nominated Officer from State Education Wing - Member 4. Nominated Officer from Director Education - Member 5 and 6. Two Senior Head of Department from Council’s different departments - Member” 12. Aforesaid body was constituted for successful conduct of various programmes and functioning of SCERT, U.P. was authorized to make Rules and other curriculum as also conditions of service of its employees. It was reconstituted by Government orders dated 23.7.2001 and 6.8.2007. Reconstituted Executive Committee of SCERT included certain non-Government members. 13. To start with, SCERT, a body constituted by Government Order, was part and parcel of Secondary Education Department. It required financial assistance from Government of India, Ministry of Human Resources Development, but vide letter dated 18.12.1991, Government of India made it clear that SCERT, unless converted in an autonomous body, will not be given financial assistance by it. Government of India, therefore, required State Government to get SCERT registered as an autonomous body, constitute various Committees/Bodies of Society and then send budget proposal to Government of India for approval. 14. Government of India, therefore, required State Government to get SCERT registered as an autonomous body, constitute various Committees/Bodies of Society and then send budget proposal to Government of India for approval. 14. SCERT proposed and accordingly State Government established “Educational Television Program Production Centre” (hereinafter referred to as “ETPPC”) vide Government Order dated 23.3.1984 for providing education through television to students. In 1991, ETPPC was titled as “State Institute of Educational Technology” and registered as a “Society” under Societies Registration Act, 1960 (hereinafter referred to as “Act, 1960”). Prior to constitution of Society, said institute was under control of Director, SCERT and later on power vested in Executive Committee of Society and, therefore, promotions have been made by said Society. 15. Learned Standing Counsel drew our attention to State Institute of Educational Technology Service Rules, 1999 (hereinafter referred to as “Rules, 1999”). Rules 47 thereof reads as under : “47. These rules shall apply to all the employees of the Institute who are in service on the date of enforcement of these rules and those who join the service subsequently. The employees who are in the service of the Institute shall give an undertaking within a month of the date of enforcement of these rules that they have read and understood the rules and are subject to these rules failing which termination of their employment can be considered on the basis of the terms and conditions of the employment. All the employees who join service subsequently will have to give this undertaking before joining.” 16. With regard to promotion, Rule 50 reads as under : “50. Promotion for all the posts will be on the basis of the scale as followed by educational media organization in the country such as IGNOU, DECU, ISRO, CSIR, ICAR, EMRCS, AVRCS and CES. The time scale, promotion will not be automatic. It will be decided by a committee constituted for this purpose which will consider the qualification and other facts irrespective of the fact whether the vacancy exists. The time scale would mean the first stage of promotion after five years of service and second stage of promotion after eight years and third after fourteen years. Therefore, it is expected every employee should get three promotions in his life time.” (emphasis added) 17. The time scale would mean the first stage of promotion after five years of service and second stage of promotion after eight years and third after fourteen years. Therefore, it is expected every employee should get three promotions in his life time.” (emphasis added) 17. Court is also informed that aforesaid Rules were approved by Governing Body of Society in its meeting dated 25.2.2000 and have been given effect from 21 December 1991. Rule 1 (2) states that Rules, 1999 shall come into force on being approved by Government of U.P., but whether and when aforesaid Rules have been approved by Government, nothing of the sort has been placed on record. It is, however, on record that various posts of technical staffs in SCERT controlled by ETPPC were created by Government Order dated 21.8.1984. Details of such posts are as under : 18. Paragraphs No. 2 to 6 of aforesaid Government Order which deals with manner of filling aforesaid posts are reproduced as under : Sr. No. Posts Number of posts Pay-scale 1. Engineer Incharge 1 Rs. 1660-2300 2. Production Incharge 1 Rs. 1660-2300 3. Assistant Engineer 1 Rs. 850-1720 4. Administrative Officer 1 Rs. 850-1720 5. Production Assistant 2 Rs. 570-1100 6. Engineer Assistant 2 Rs. 625-1240 7. Script Writer 1 Rs. 625-1240 8. Camera man 1 Rs. 625-1240 9. Graphic Assistant 1 Rs. 570-1100 10 Technician 2 Rs. Engineer Incharge 1 Rs. 1660-2300 2. Production Incharge 1 Rs. 1660-2300 3. Assistant Engineer 1 Rs. 850-1720 4. Administrative Officer 1 Rs. 850-1720 5. Production Assistant 2 Rs. 570-1100 6. Engineer Assistant 2 Rs. 625-1240 7. Script Writer 1 Rs. 625-1240 8. Camera man 1 Rs. 625-1240 9. Graphic Assistant 1 Rs. 570-1100 10 Technician 2 Rs. 570-1100 **2- mi;qZDr inksa dh vgZrk;sa ogha gksxh] tks Hkkjr ljdkj ds layXud ds v)Z'kkldh; i= la0 ,Q&12&8@83&,l lh ,p & 5] fnukWd 11 tqykbZ] 1983 esa fu/kkZfjr dh xbZ gSa vFkok Hkfo"; esa le;d'k ij fu/kkZfjr dh tk;sA 3- ftu inksa ds lh/kh HkrhZ }kjk Hkjk tkuk gS] mudks foKkfir fd;k tk;sxkA foKkiu ds QyLo:i izkIr izkFkZuk i=ksa esa mUgha dks p;u lfefr ds le{k izLrqr fd;k tk;sxk tks lHkh fu/kkZfjr 'krZs iwjh djrs gksA bu inksa ds p;u gsrq p;u lfefr dk xBu izLrj 4 o 5 ds vuqlkj gksxkA 4- Js.kh 1 o Js.kh 2 ds in ftuds fu;qfDr vf/kdkjh Jh jkT;iky gS] ij lh/kh HkrhZ }kjk rnFkZ fu;qfDr gsrq p;u lfefr dk xBu fuEuor~ fd;k x;k gS%& 1- lfpo] dkfeZd foHkkx 2- lfpo] f'k{kk foHkkx 3- funs'kd] jkT;'kSf{kd vuqla/kku ,oa izf'k{k.k ifj"kn~] m0iz0 4- funs'kd] nwjn'kZu dsUnz] y[kuÅ }kjk ukfer ofj"B rduhdh vf/kdkjhA 5- Js.kh 3 ds inksa ds fu;qfDr vf/kdkjh] funs'kd] jkT;'kSf{kd vuqla/kku ,oa izf'k{k.k ifj"kn~] m0iz0 gSaA bu inksa ij lh/kh HkrhZ }kjk rnFkZ fu;qfDr gsrq p;u lfefr dk xBu fuEuor~ fd;k x;k gS%& ¼v½ funs'kd] jkT;'kSf{kd vuqla/kku ,oa izf'k{k.k ifj"kn~] m0iz0 ¼c½ Jh vkj0,u0 lDlsuk] la;qDr lfpo] f'k{kk foHkkx ¼l½ funs'kd] nwjn'kZu dsUnz] y[kuÅ }kjk ukfer ,d ofj"B rduhdh vf/kdkjhA 6- mi;qZDr inksa dh lsok fu;ekoyh ugha cuh gSA tc rd lsok fu;ekoyh iz[;kfir ugha dj nh tkrh gSa ml le; rd bu inksa ij p;u@fu;qfDr dh izfdz;k mi;qZDrkuqlkj gksxhA d`i;k rn~uqlkj vko';d dk;Zokgh lqfuf'pr djsaA** (emphasis added) “2. Qualifications of aforesaid posts shall be same as determined in Semi-official letter No. F-12-8/83- S.C.H-5, dated 11th July, 1983 of annexure of Government of India or as determined from time to time in future. 3. Posts that have to be filled through direct recruitment, shall be advertised. From application received in consequence of advertisement, only those shall be presented before Selection Committee which shall be fulfilling all stipulated conditions. For selection on these posts, Selection Committee shall be constituted as per para 4 and 5. 4. 3. Posts that have to be filled through direct recruitment, shall be advertised. From application received in consequence of advertisement, only those shall be presented before Selection Committee which shall be fulfilling all stipulated conditions. For selection on these posts, Selection Committee shall be constituted as per para 4 and 5. 4. For ad-hoc appointment through direct recruitment on class I and Class II posts whose Appointing Officer is His Excellency the Governor, Selection Committee shall be constituted as follows : 1. Secretary, Personnel Department. 2. Secretary, Education Department. 3. Director, State Educational Research and Training Council, U.P. 4. Senior Technical Officer nominated by Director, Doordarshan Kendra, Lucknow. 5. Appointing Officer for Class III Posts is Director, State Educational Research and Training Council, U.P. For ad-hoc appointment through direct recruitment on these posts, Selection Committee shall be constituted as follows- (A) Director, State Educational Research and Training Council, U.P. (B) Shri R.N. Saxena, Joint Secretary, Education Department. (C) A Senior Technical Officer nominated by Director, Doordarshan Kendra, Lucknow. 6. Service Rules of aforesaid posts is not framed. Until Service Rules are promulgated, Selection/Appointment procedure of these posts shall be that as provided above. Please ensure necessary action accordingly.” (English Translation by Court) 19. Nothing has been brought on record to show that existing employees of SCERT were transferred or absorbed in Society or they were required to exercise their option for their absorption in Society etc., or they have given any such undertaking. 20. It appears that after constitution of Society, respondent-SCERT proceeded on assumption that everything stood transferred to Society without caring of the fact that status of civil servants and civil posts of which State Government is Controlling Authority, who also enjoy protection of constitutional provisions, cannot stand changed unless they give consent or by making some statutory provisions by competent Legislature, else such a change amounts to cessation of their services as Government servant, without following procedure prescribed in law which will be illegal. 21. 21. Court required learned counsel for respondents to clarify this aspects but virtually found no assistance in making their stand clear, as to how posts which were created by State Government in a body which was part of State Government could get suo-moto transferred to a Society registered under Act, 1960 and authorities under Society could get power of appointment or promotion on such posts and also of persons who were appointed as Government servant. Rules framed by Society would not per se become binding or applicable to petitioner and respondents-4 to 17 who were appointed as Government servants by authorities of State Government. 22. In these facts and circumstances, I find no option but to declare impugned orders of promotion illegal having been passed by an authority not competent to do so. 23. In view of above, this writ petition is allowed. Impugned orders dated 10.11.2000 of promotion/extension are hereby set-aside.