Hon’ble Shri Narayan Shukla, J.—Heard Mr. Upendra Nath Mishra, learned counsel for the petitioner, Mr. Rakesh Kumar Chaudhary, learned Additional Advocate General alongwith Mr. Ashutosh Singh, learned Standing Counsel as well as Mr. H.G.S. Parihar, learned Senior Counsel assisted by Mr. Rajendra Kumar, learned counsel for the respondent No. 4.

2. The petitioner being appointed on the post of Deputy Director, Panchayat Raj Department of the State Government has assailed an order dated 27.5.2016, whereby the State Government had created a post of Deputy Director (Technical) temporarily in the Pay Scale of Rs. 15600-39100/- with Grade Pay of Rs. 6600/- as also the order dated 3.6.2016, whereby the fourth respondent had been promoted on a newly created post i.e. Deputy Director (Technical).

3. The service conditions of the gazetted officers appointed in Zila Panchayat Monitoring Cell are governed under the Uttar Pradesh Zila Panchayat Monitoring Cell Gazetted Officer’s Service Rules, 2004 (Rules, 2004). Part-II of the Rules, 2004 deals with the cadre of service. Rule 4 of the Rules, 2004 deals with the strength of each category of post. The total strength in the cadre of Deputy Director post has been provided 3 in number, however, rule 4 (2) (ii) provides that the Governor may create such additional permanent or temporary post as he may consider proper. We quote the provisions of Rule 4 as under:

“4. (1) The strength of the service and of each category of posts there in shall be such as may be determined by the Government from time to time.

(2) The strength of the service and of each category of posts there in shall, until orders varying the same are passed under sub-rule (1), be as given below:

Serial No.	Name of Post	Number of Posts
1.	Deputy Director	3	-	2
2.	Engineer	2	-	2
3.	Karya Adhikari	2	-	2
4.	Medical Officer (Allopathic and Ayurvedic or Homeopathic)	2	-	2

Provided that :

(i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacancy post without thereby entitling any person to compensation; or

(ii) the Governor may create such additional permanent or temporary post as he may consider proper.”

4. Part-III of the Rules, 2004 deals with the source of recruitment to the different posts. It provides that the recruitment on the post of Deputy Director shall be made (i) 33 ½ percent by promotion through Selection Committee from amongst substantively appointed Engineers; (ii) 33 ½ percent by promotion through Selection Committee from amongst substantively appointed Karya Adhikaris; and (iii) 33 ½ percent by promotion through Selection Committee from amongst substantively appointed medical officers. We quote Rule 5 of the Rules, 2004 as under:

“5. Recruitment to the various categories of posts in the service shall be made from the following sources :

5. The petitioner is the senior most Deputy Director being promoted under 33 ½ percent quota from amongst substantively appointed Engineers. Sri Sushil Kumar is the next Deputy Director being promoted under 33 ½ percent quota from amongst substantively appointed Karya Adhikaris and Dr. (Smt.) Suman Lata is the third Deputy Director being promoted under 33 ½ percent quota from amongst substantively appointed Medical Officers.

6. Fourth respondent is working as Engineer in the department of Uttar Pradesh Zila Panchayat Monitoring Cell, therefore, he could get his promotion to the post of Deputy Director under 33 ½ quota on substantively appointed Engineers. He was considered also alongwith the petitioner for promotion to the post of Deputy Director in 2013 but he could not succeed as it was the petitioner, who was promoted vide office memorandum dated 25.2.2013 from amongst t